I Can't Breathe

by Matt Taibbi

  The two boys went back outside and knocked. Kelling told them they could come in.

  The boys entered, then once again asked if they could see the records.

  “No,” Kelling said.

  Kelling in Lino Lakes ended up doing exactly what he’d imagined doing. He made order a priority and worked to normalize the experience of the children, trying to integrate them into the community as quickly as possible rather than keeping them stuck in the institution. They cut down on violence, assaults on staff, and soon had kids going to school, Boy Scouts, and other activities. It seemed a success.

  —

  In the years that followed, there was a drug revolution, campus unrest, a military quagmire in Vietnam, a cascade of antiwar demonstrations, and a series of emerging political divisions that felled President Lyndon Johnson.

  By 1968, white Middle America was profoundly afraid of a collapse in the social order. Young people were angry. Blacks were angry. Cities were being burned, campuses overrun. There was a longing for order, almost at any cost.

  In the midst of all this, a case called Terry v. Ohio reached the Supreme Court. There is no way to understand what took place in Staten Island in the summer of 2014 without understanding this case.

  It was about a Cleveland police officer named Martin McFadden who saw two black men, John Terry and Richard Chilton, standing on the street corner outside of a city department store. The two later met up with a white man named Carl Katz. McFadden thought they looked suspicious and approached. The short version of the story is that he questioned the men and ultimately searched and found weapons on two of them.

  The question before the court was whether or not McFadden had had the right to stop, question, and physically pat down the three men based on little more than a detective’s hunch that something was up.

  The Supreme Court of Earl Warren had become known for expanding civil liberties and curtailing police power, for instance by ending the “third degree”—a euphemism for torture as an interrogation tactic—and forbidding the use of illegally seized evidence, in the 1961 case Mapp v. Ohio. But now, as some Americans were beginning to panic over a perception of massive urban unrest, the court reversed course and gave the police a new weapon. They ruled McFadden’s arrest had been a good one and thereby created a new legal framework for police interactions with people on the street.

  The Terry decision essentially said that the legal standard for a whole generation of field searches would henceforth rest in the minds of police officers. Now police could stop—and physically touch—anyone, if they had a “reason.” Police could now stop and question anyone if they had a “reasonable” suspicion that a crime was about to be committed. Moreover, in such field interrogations, a police officer could now pat down a suspect if he had reason to believe him or her armed and dangerous.

  In his majority opinion, Earl Warren, who at the time was under increasing criticism for having created an atmosphere that “coddled” criminals, wrote something very strange:

  The wholesale harassment by certain elements of the police community, of which minority groups, particularly Negroes, frequently complain, will not be stopped by the exclusion of any evidence from any criminal trial. Yet a rigid and unthinking application of the exclusionary rule, in futile protest against practices which it can never be used effectively to control, may exact a high toll in human injury and frustration of efforts to prevent crime.

  Translated loosely, what Warren was saying was that even if all of those complaining black people are right about police abuse, my Supreme Court lacks the power to do anything about it. It’s going to happen no matter what.

  However, he wrote, while helpless to stop police abuse, we do have the power to make fighting crime easier.

  Therefore, Warren suggested, we will worry about one and not the other.

  We can’t do anything about racism or police brutality. But we can do something about crime.

  —

  Through the seventies there were two beliefs about policing that, at the time, went unchallenged in mainstream American thought.

  The first defined the fundamental role of the police: to combat serious crime in an essentially reactive role, by patrolling and investigating.

  Thanks in part to the ideas of former Chicago police superintendent Orlando “O. W.” Wilson, most urban police forces were organized around the idea that with the aid of technology like the patrol car and the two-way radio, advanced professional policing would not just contain crime but eventually eliminate it.

  The other largely unquestioned belief was a sociological theory about the origins of crime.

  “The conventional wisdom at the time was that crime was caused by poverty, racism, and social injustice,” says Kelling. “And since the police couldn’t do anything about that, they couldn’t do anything about the causes of crime.”

  Kelling says even he believed that second notion through his early adulthood.

  “It was the dominant theme of sociology, which was that in order to prevent crime, you had to go through macro social change,” he says now. “In the early 1970s, I had no quarrel with that. It seemed to me entirely reasonable that you had to deal with problems like unemployment in order to prevent crime.”

  Still, he was interested in investigating alternatives. After leaving Lino Lakes, he returned to academic work and was eventually hired by groups like the Police Foundation, a privately funded think tank, to study new ideas in policing, a hot topic in the post-sixties hangover years.

  Kelling’s first major project, in 1972, was a grant to study the effectiveness of random automobile patrols in Kansas City. Later, he did a major study of the efficacy of police foot patrols in Newark, New Jersey.

  He devised experiments to explore each case and came to two major conclusions.

  The first is that varying the frequency and prevalence of radio car patrols had no real impact on either crime or the fear of crime. Cars apparently weren’t the panacea policing wizards had believed them to be since the days of Jimmy Cagney movies.

  The second is that while increasing foot patrols had little objective impact on actual crime rates, it had a profound impact on the fear of crime.

  Having officers on the street reassured people. This was in part because police themselves were more visible and in part because officers on the street spent a lot of time attacking what one might call the outward symbols of disorder, like panhandling and public drinking.

  Riding around in cars with cops in Kansas City, Kelling saw how police in vehicles were physically cut off from their neighborhoods. He remembers being struck by the image of a police officer rolling down his car window and having to wave his arms to get a pedestrian to come closer to the car, so that they could talk.

  Meanwhile the cop on a Newark foot patrol was in regular intimate contact with his environment, constantly gathering intelligence and enforcing the rules of the neighborhood. Some of the rules followed the laws on the books; others were more intuitive.

  “You could panhandle from people who were moving, but not from people who were standing still,” he explains. “You could have a bottle of booze, but only out of a paper bag. You could drink, but not on the main drag. Basically, they were doing order maintenance.”

  The enforcing of these invisible laws created a sense of safety and reassurance for citizens, which to Kelling was a major step forward. If neighborhood fear was real enough to keep elderly people indoors at night, that was a kind of crime, even if it wasn’t easy to quantify.

  Eliminating that fear was therefore an end in itself. Understanding this led Kelling to a simple but groundbreaking conclusion:

  Policing is not just about enforcing the law.

  Policing is about maintaining order.

  —

  Sometime later, a Harvard professor named James Wilson called Kelling and told him he wanted to write an article with him for the Atlantic magazine. Wilson was already known as an original—if sometimes controversial—thinker o
n criminal justice issues. Kelling accepted.

  For their Atlantic article, Wilson wanted to incorporate the ideas of famed Stanford professor Philip Zimbardo. Zimbardo had performed an experiment involving disabled vehicles in two locations, a rough section of the Bronx and an upscale section of Palo Alto. In both places the car had its license plate removed and was left with its hood up.

  In the Bronx the car was skeletonized by locals almost immediately, with the radio and battery ripped out right away. Before long the car had become an impromptu playground for neighborhood kids.

  The Palo Alto neighborhood of upscale white people left the car alone completely until Professor Zimbardo came by a week later and smashed part of it with a sledgehammer. As soon as what Wilson and Kelling later described as “respectable whites” saw that damage, they acted as if they had been given implicit permission to destroy the car and quickly began vandalizing it.

  Zimbardo was testing a theory that many social scientists had long held, that went something like this: “If a window in a building is broken and is left unrepaired all the rest of the windows will soon be broken.”

  This gave Wilson and Kelling the title for their Atlantic article.

  The power of “Broken Windows,” published in March 1982, turned on the simple insight that had animated much of Kelling’s work: that order as an affirmative concept changed the behavior of the surrounding society in beneficial ways.

  This insight had helped Kelling transform that small Minnesota home for troubled youths, where cleaning glass off bathroom floors turned the volume down on the psychoses and neuroses of a handful of adolescents. The same idea was now about to be hypothesized as at least a partial solution to a problem of immense political and historical complexity: crime and unrest in America’s cities.

  What Kelling and Wilson argued for was a more activist police force whose mission was something that could not easily be put into words. In fact, they said, the idea that the sole job of police was to enforce clearly written laws was part of what was holding police back.

  “For centuries, the role of the police as watchmen was judged primarily not in terms of its compliance with appropriate procedures but rather in terms of its attaining a desired objective,” they wrote. “The objective was order, an inherently ambiguous term but a condition that people in a given community recognized when they saw it.”

  This definition of “order” was an echo of Supreme Court justice Potter Stewart’s famous formulation about obscenity: “I know it when I see it.” To enforce these ambiguous codes of conduct in a bigger community like a city neighborhood, Kelling and Wilson theorized that it may be necessary to allow a certain amount of, well, ambiguous behavior on the part of police:

  Until quite recently in many states, and even today in some places, the police made arrests on such charges as “suspicious person” or “vagrancy” or “public drunkenness”—charges with scarcely any legal meaning. These charges exist not because society wants judges to punish vagrants or drunks but because it wants an officer to have the legal tools to remove undesirable persons from a neighborhood when informal efforts to preserve order in the streets have failed.

  Translation: just as everyone understands what we mean when we talk about order, so too do we understand that laws against things like vagrancy or suspicious behavior are really just tools police can use to maintain that indefinable standard.

  Kelling and Wilson went on to explain that sometimes even giving police these essentially limitless powers to arrest people is insufficient to get the job done. The authors talked, for instance, about how Chicago police in a tough neighborhood in the early sixties dealt with gang violence.

  “What the police in fact do is to chase known gang members out of the project,” they wrote. “In the words of one officer, ‘We kick ass.’ ”

  The essence of the “Broken Windows” article therefore was that to make the theory work, police might have to be given expanded leeway to enforce the nebulous and unwritten concept of order. And though it doesn’t say so explicitly, the article seemed to imply that in order to do that, cities should find ways to approximate those old, blurrily defined vagrancy laws and maybe turn a blind eye to the occasional ass kicking.

  Kelling in particular was keenly aware of the potential for misuse of his ideas.

  “I’d already been exposed, in South Boston for instance, to people whose idea of ‘maintaining order’ was keeping the black people out of their neighborhoods,” Kelling says now. “So I knew that was a potential problem.”

  He and Wilson addressed the issue in their famous article.

  “How do we ensure…that the police do not become the agents of neighborhood bigotry?” they wrote.

  In the end, Kelling and Wilson weren’t sure. Their conclusion was that they just had to hope it wouldn’t turn out that way.

  “We can offer no wholly satisfactory answer to this important question,” they wrote. “We are not confident that there is a satisfactory answer except to hope that by their selection, training, and supervision, the police will be inculcated with a clear sense of the outer limit of their discretionary authority.”

  This conclusion was remarkably similar to the conclusion Earl Warren came to in the Terry case. Kelling and Wilson, like Justice Warren, were saying that they didn’t have a solution to the problem of how to prevent systematic discrimination and police abuse, except to hope it wouldn’t happen.

  What they did have, they thought, was a tool that would help reduce crime. They weren’t sure if it would be abused or not. But they were pretty sure it would work.

  —

  While Kelling was working on “Broken Windows,” America’s great cities appeared to be crumbling. New York, America’s greatest city, was the worst symbol of this decline.

  Crime soared, common areas were decrepit, and the “scariness” of the city—typically represented in the media and by politicians as an angry or desperate black or brown thief or panhandler—became a signature part of its identity. The fearfulness of upper-class white New York soon became a major theme in popular culture. The media depicted the city as a place under virtual siege by an unconquerable, zombie-like army of homeless people, squeegee men, drug dealers, graffiti artists, roving gangs, pimps, and prostitutes.

  Movies like After Hours, Quick Change, and The Warriors told the story of New York as a place where just getting home could at any time turn into an epic survival tale.

  The subway was where those fears were felt most keenly. In truth, actual crime rates were higher aboveground than they were belowground. But people were afraid of the subway. They feared its chaotic appearance and its “unpredictable and obstreperous people,” as Kelling would describe them in a City Journal article in 1991.

  Kelling had by then become a key consultant to an effort to transform New York’s subways. His ideas emphasized what in his mind was a crucial point, one that he’d learned in his earliest studies.

  “People frightened of crime,” he said, “are already victims.”

  Kelling believed strongly that the best way to reduce fear was to conquer the external symbols of disorder. He wrote approvingly of the city’s Clean Car Program, an ambitious effort to wipe out perhaps the most visible symbol of disorder in the city: graffiti on subway cars.

  The program was started by Ed Koch at the depths of New York’s chaotic post-bankruptcy years and involved taking cars with graffiti out of service until they’d been scrubbed. This removed the primary motivation of graffiti artists, the chance to see their work traveling the city’s four subway-connected boroughs. Most New Yorkers were unaware that this process involved an intense, almost guerrilla-like war with taggers, who shifted their focus to painting the interiors of tunnels, so that those could be seen. But even those areas were eventually scrubbed, and by 1989, the last “dirty” car was pulled out of service. To people like Kelling, a big part of the war against visual disorder had been won.

  The shift was palpable for city commuters�
�a trip that had once been a daily reminder of the wild lawlessness of the city slowly became something more blissfully uneventful.

  This emboldened the city to move to the next step: ridding the subways of “obstreperous” people.

  The city’s first plan was an ill-fated Commando Cleaning program. This used the preposterously aggressive technique of blasting certain areas of subway stations at odd hours with water from high-powered hoses. Ostensibly designed to clean the subway stations, the hoses’ actual objective was to blast away the people who were using those stations at odd hours—which meant the homeless.

  George Kelling opposed the tone-deaf Commando program. This was a real chance to try out his Broken Windows theory in the biggest city in America, and he didn’t want it going sideways. He insisted that any program that stereotyped people instead of focusing on behavior was wrong and in any event would be opposed by the police asked to do those jobs.

  Kelling was anxious to keep Broken Windows from turning into a symbol of thuggery and state-sanctioned racism. He wanted it to be perceived as fair. And he wanted the police enforcing his ideas to feel like they weren’t doing something to outrage their consciences. Kelling’s constant concern that his theory could be put to bigoted uses is evidence of his awareness of just how racially coded the fear of civic disorder had become.

  He predicted the Commando Cleaning program would fail, and it did. It was panned in the media and quickly discontinued. Soon after, he was invited by Transit Authority president David Gunn to participate in a new panel, designed to come up with better ideas for how to restore order to the subway.

  After a few fits and starts, the reform of the subway really took off when the Transit Police Department got a new chief, a brash, macho Bostonian named William Bratton. Bratton had been chief of the Massachusetts Bay Transit Authority (MBTA) Police and was a staunch proponent of Kelling’s ideas.

  In fact, Bratton was himself a sort of pioneer of Broken Windows, having used similar techniques while working as a police commander in the Fenway Park area in Boston in the late 1970s.