Mass incarceration and the criminal justice system are a kind of Rorschach test for the political imagination. You see something wanting for a few smart tweaks, a set of structures long overdue for a fundamental overhaul or an urgent need for abolition.
With his new Justice Reboot program, New York City Mayor Bill de Blasio has surprisingly shown himself to be on the conservative end of this spectrum. His plan is supposed to cut down on gross unfairness in the city’s penal system with some targeted nudges. It is a limited solution to a massive structural problem.
With Justice Reboot, de Blasio is ostensibly trying to fix the summons court system. When the mayor announced in November that people stopped for marijuana possession would be issued summonses, not arrested, advocates worried that an already overburdened summons court system would collapse under the weight of the new influx. Justice Reboot is an attempt to make those courts run smoothly enough to accommodate the larger numbers.
It’s also an attempt to reduce the mass incarceration that has clogged jails as well as courts. About 10,000 New Yorkers are held at the Rikers Island jail complex at any given time, but the vast majority haven’t been convicted of a crime. Remanded or unable to afford bail, they languish sometimes for years with little recourse. A 2010 Human Rights Watch report on pretrial detention in New York is shocking: 39 percent of the jail population is held pending trial, and they average over two weeks in detention. These are not all hardened criminals; 71 percent were accused of nonviolent crimes. Justice Reboot will speed up their processing by reviewing a round of long-stalled cases and making it easier for low-level offenders to pay fines and avoid becoming tangled in the court system. In a disruptive display of courtesy, the city will use text messages and phone calls to remind people to pay on time and even let them pay online.
On paper, these appear to be sensible moves. If people are in jail because the system doesn’t move fast enough or isn’t clear enough, then we should speed up the system and get them out of there and on with their lives.
But the authorities could do better. De Blasio’s apparently good intentions to lower the prison population are thus at odds with this tinkering approach to criminal justice. Tweaks are unlikely to make much of an impact on such an enormous problem.
De Blasio and his Police Commissioner Bill Bratton publicly support so-called broken windows enforcement, in which the authorities crack down on quality-of-life violations such as vandalism and public urination. The model has become popular nationally, but in most cities the police just don’t enforce the law as much as the NYPD does.
Discretion, in fact, is key. No one — not even the cops — wants to live in a world where every single law and regulation is enforced to its full extent every time. For low-level offenses, the NYPD generally has the discretion to issue summonses or make arrests. The summons is noncriminal — like a ticket — while an arrest probably means misdemeanor criminal charges. Sometimes the police will ignore the offense altogether.
How and when officers choose to exercise discretion is heavily influenced by larger institutional priorities, though, and these priorities haven’t changed in New York. The buck stops at the top; if the summons court is too full, it’s not just because individual cops make certain decisions. It’s because New York City wants it that way. To make sure individual officers are complying with City Hall’s discretionary plans, a system called CompStat — essentially a database of crime statistics — compiles all these individual enforcement choices to ensure everyone does his or her job.
Theoretically, broken windows aspires to something like uniform enforcement, even if it results in civil rather than criminal sanctions most of the time. It leaves little room for discretion. In 2014 the NYPD punished 93,631 turnstile jumpers, 72 percent of whom were issued summonses. Because there are so many cases, though, the remaining 28 percent was enough to make fare beating the crime that led to the city’s second-most incarcerations, after controlled-substance cases.
Even if the authorities cut their incarceration rate for turnstile jumping by half, it would likely top everything but drugs and larceny. And yet it should go without saying that locking someone up for jumping a turnstile — which costs the transit authority $2.75 — makes no moral or economic sense. It is quite simply wrong, but it’s what we do.
If the city took this Reboot logic to its full extent and automatically assessed fines for sneaking past a subway gate (using facial recognition technology, for instance) it would simply become very efficient at charging poor people who have just evaded paying fares they clearly can’t pay. As the Department of Justice report on Ferguson, Missouri, revealed, fines are an important source of municipal revenue, and their nonpayment turns civil code violations into time behind bars. The effect of broken windows policing is, for all intents and purposes, to exploit and punish the poor. The techno-liberal mode of criminal justice reform seeks to make this system more impartial and even-handed in its enforcement through automation. But the best we can hope for from this agenda is what Anatole France sardonically described as the rich and poor equally prohibited from stealing bread.