by Matt Taibbi
So if you’re a prostitute with no fixed address and a long criminal history hauled in during the wee hours of a Tuesday morning for accepting some undercover cop’s sting offer of twenty bucks for a sex act outside a park, you’re pretty much automatically looking at two weeks to three months in jail, plus a two-hundred-dollar fine (“That’s like ten blowjobs,” comments one public defender righteously) from the moment the city decides to file the charge. And even in the relatively rare instance where God smiles upon you and sends an undercover officer your way who doesn’t know how to make a legal arrest, you will still plead guilty and pay the violation for loitering.
You’re paying the fine not for what you did, mind you, but simply out of recognition that you’d be paying a lot more if the state decided to be difficult and proceed with its messed-up case.
This is the essence of Justice by Attrition. It’s like a poker game where after arrest, the accused sits down at the table with one chip. But the other player, the state, has a stack of chips fifty feet high. Will you play, or will you fold?
Most everybody folds.
Well, so what, right? If you commit a crime, why shouldn’t it be easy for the state to get a conviction? We can’t waste the public’s money on trials for every back-alley sex act in New York. That would cripple the city budget in half a week.
That’s true, but what starts to happen is, the authorities get mission creep. Convictions are so easy, the police eventually stop waiting for the actual crime to be committed. Instead of waiting to watch a sex act for pay actually take place, the police, even better, will simply arrest a woman for “loitering for the purpose of engaging in a prostitution offense.”
“Loosely translated,” one attorney put it to me, “that means standing on the street in hot pants.”
Police will bring in a streetwalker for “engaging in conversation” or “attempting to stop” a man on the street. One Manhattan lawyer says 70 percent of her prostitution cases are technically loitering charges. But out of a hundred such cases she had in one year, only four defendants decided to fight the charges.
“It’s a resources game,” says Roy Wasserman, a Brooklyn-based public defender. “If they have the money to bail out, they fight it. If they don’t, they plead. It all comes down to that.”
Making “standing on the street and looking hookerish” against the law leads to all sorts of absurdities, especially when you’re relying upon (usually young) policemen to make that distinction. A good example is a 2009 case in Portland, Oregon, when a thirty-six-year-old writing teacher named Ann Marie Selby missed a bus and got arrested for suspicion of being a prostitute when she decided to walk home. Just as in New York, where “making eye contact” with drivers is often considered an element of the “loitering” crime, police claimed they saw Selby looking into the windows of passing SUVs, which led them to be suspicious.
When they stopped her and asked her what she was doing, she kept walking. They then physically got in front of her, at which point she explained that she had been to a spa and even pulled out a receipt to prove it.
When police took the receipt away, Selby, realizing it was her only evidence, lunged for it, knocking a police notebook into the street. That got her a harassment charge (“offensive physical contact” being the specific kind of harassment) in addition to the suspicion of being a hooker charge.
We hear about cases like that and they make news when the people arrested are innocent (and white). The problem is, nobody much cares about the people who are guilty.
“People make such a big deal about innocent people being thrown into jail,” says David Mills, a professor at Stanford who helped lead the charge to reform California’s infamous three-strikes program. “I don’t know anyone, intellectually, who’s in favor of innocent people being arrested and jailed. What’s much more interesting is how we treat the guilty.”
And that’s the problem with Justice by Attrition. It’s not just that it catches up innocent people in its massive dragnet. It’s also that it applies disproportionate punishment to the guilty. How many upscale New Yorkers have ever been arrested for public drunkenness, for carrying a joint or a bottle of pain pills, for having a knife or a box cutter in a car?
Police, if they wanted, could throw a net over the exit of any nightclub in Lower Manhattan on a weekend night and score a couple of dozen drug cases. Or they could crack down on the Wall Street guys in suits who sneak into doorways for late-night rub-and-tugs or park their Lexuses near the Battery for after-work blowjobs.
But they don’t. The thing is, that sort of “quality of life” crime isn’t really focused on much. In fact, the rise in broken windows arrests has paralleled a drop in arrests for these other kinds of offenders.
For instance, the disparity in arrests of prostitutes versus johns is growing all over the country. In Lansing, Michigan, police in the 1990s arrested prostitutes and johns in equal numbers. By the early 2000s, it was 3 prostitutes for every john. It was about 7 to 1 in Chicago, about 9 to 1 in Seattle, and in Boston the ratio was 11 to 1.
Meanwhile, misdemeanor arrests have skyrocketed everywhere. In one three-year period in New York between 1998 and 2001, they went up 37 percent. And you can see this in the courts. Almost everyone you talk to in criminal courts complains that they spend far too much of their time dealing with “bullshit” cases: car stops, weed arrests, loitering, disorderly conduct. A huge number of those misdemeanor cases are simply tossed out, or they’re effectively ended when judges release the defendant on his own recognizance. But of the defendants who don’t get released with no bail, an extremely high percentage are not able to make the bail. This suggests that when judges set bail in these nuisance cases, they’re carefully picking numbers just high enough to keep people in jail.
A study by Human Rights Watch from 2008 bore this out. They looked at 117,064 nonfelony cases in New York that year and found that more than three-fourths of the defendants were released on their own recognizance. But 19,137 of the defendants were given bail of $1,000 or less, and an incredible 87 percent of those still couldn’t post bail. Those people who couldn’t make bail spent an average of fifteen days in jail awaiting trial.
Think about that. That’s more than 16,500 people a year who did an average of two weeks in jail for misdemeanors. If you went to college, were any of those friends of yours? Nobody you knew passed out on a subway car, took X at a club, smoked a joint after work, paid for sex, or drank beer on the street?
No, almost all these people come from nonwhite or poor New York, and they’re all people who don’t have eight hundred dollars in cash in a bank account. Lawyers at the courts on Schermerhorn Street, where many of Brooklyn’s cases play out, have a word for bail set just high enough so that people can’t pay, but low enough so that bail bondsmen won’t take the business.
“They call it ‘nuisance bail,’ ” says Jane Fox, a public defender.
The courts didn’t spend most of their time on this kind of stuff twenty or thirty years ago. The number of so-called quality of life arrests skyrocketed in the early 1990s, with the implementation of broken windows. And when studies started to surface showing massive racial disparities in the number of quality of life arrests—blacks and Hispanics made up 91 percent of all QOL arrests according to one study done in 1999, while whites, who made up 43 percent of the city’s population, made up just 11 percent of all stops in the stop-and-frisk program—the city had a ready answer.
It claimed that it made no sense to look at QOL numbers alone, and that an 89 percent or 90 percent QOL rate was consistent with the fact that 85 percent of serious crimes were committed by blacks and Hispanics. In other words, their argument was that they arrested more people for bullshit crimes because they also arrested more people for serious crimes. They relied upon academic studies that told them that, generally speaking, the same people who committed serious crimes also committed minor crimes. A study by famed criminologists Michael Gottfredson and Travis Hirschi, for instance, opined
that people who demonstrate low self-control in “a wide variety of criminal and analogous behaviors”—people who have issues with drinking or drugs, or have problems with school, interpersonal relationships, and keeping a job—“will not specialize in some [crimes] to the exclusion of others.”
In other words:
Low-class people do low-class things.
This same thought process is buried in the way the initial Criminal Justice Agency interviews are evaluated. People who have jobs, family, a working telephone, a consistent address, no record of missed appearances, they’re given good scores and consequently have a much better shot at bail. People with poor “self-control” scores, on the other hand, are given bad scores, and they tend to stay in.
Hirschi was convinced that people who were usefully busy didn’t commit crimes. “The child playing ping-pong, swimming in the community pool, or doing his homework,” he said, “is not committing delinquent acts.” Hirschi didn’t spend a whole lot of time looking at people who had good jobs and became criminals anyway, completely ignoring in this way a whole class of crime. White-collar crime by its very nature involves a high degree of self-control and planning. It’s committed almost overwhelmingly by people who had enough self-mastery to make it through high school and college and hold down good jobs.
The policing policies that sprang up around these and other theories, and that were based upon the idea that crime is encouraged by poor family structure and neighborhood disorder, were all about creating an atmosphere that would check the unconscious impulse toward crime. Let’s make people actually think before they jump a turnstile, and that impulse to think about consequences will be nurtured and grow with each arrest, and over time you’ll create a law-abiding citizen.
It actually sounds good in theory. But there are two big problems with it.
One, it completely ignores the possibility that there are people who commit crime consciously, as a lifestyle choice—like, say, your banker at HSBC who opens an account for Sinaloa Cartel members. That guy is not jumping a turnstile. He might very well have a coke problem, or wander around drunk in public, or visit prostitutes, but the likelihood that he’ll be arrested for any of these things is extremely low.
Second, what happens if those broken windows arrests are not legitimate arrests? What impulse do you inspire over time in your repeatedly arrested but often innocent defendant in that case?
Mostly what you’re doing is creating a lot of really angry people. Justice by Attrition turns courthouses like this giant complex on Schermerhorn Street into huge fun houses of unreasonableness and mindless punishment, where you can peek into just about any room and find someone absolutely beside himself with disbelief over what is happening to him.
Upstairs from the prostitute’s case, I meet a public defender named Josh Saunders talking with his client, a young Hispanic man who’s been charged with a domestic violence offense. The state is offering a B misdemeanor plus entrance into a counseling program, a year and a half of school for which the defendant will have to pay fifty dollars every time he goes to class.
“It’s an enormous amount of money,” Josh tells his client. “You have zero incentive to take that.”
The client is out—free because the judge waived bail, so that’s good news for him. But he’s also got a job and the court appearances are no joke. Judges are not terribly understanding about defendants who try to reschedule hearings because they have jobs, or children, or other problems. And to fight a misdemeanor charge, even a violation, even if you’re out on bail, usually means four or five trips to court at minimum. Every motion to suppress evidence or challenge the complaint means more time, more excuses to bosses, more babysitters you have to hire.
In February 2013 I was in a courthouse clerk’s office when I overheard a man pleading with the woman behind the counter. I had seen the man in court before but couldn’t place what the case was.
“But this is the second time,” he said. “I keep coming back to court, and the police keep not showing up.”
“Well,” the clerk said, “the police are very busy. Sometimes they just can’t make it.”
“It says here my new trial date is March twentieth,” he said. “What if they don’t show up then? How many times do I have to do this?”
“Sir, I don’t know,” she said.
The man’s name turned out to be Andre Finley. Like Andrew Brown, he lived in Bed-Stuy, although he was a newcomer. He had just moved from Harlem. He had a clean record, but he was one of twenty thousand New Yorkers in 2012 who were given a summons for riding a bicycle on the sidewalk. The actual Bed-Stuy sidewalk was empty, but that wasn’t Andre’s problem. He wasn’t even contesting the case. The problem was the fine, which was a hundred dollars.
“The thing is, I’m on HRA,” he said. That’s what they call welfare in New York—HRA, the city’s Human Resources Agency, provides temporary cash assistance. “I get like three hundred dollars a month. If they fine me, they’re just paying money to themselves. I’m willing to do community service. I’m even willing to sit in jail for fifteen days if it comes to that, you understand? I get it, I rode a bike on a sidewalk, I’m not even disputing that. But I don’t have a hundred dollars.”
I asked him what happened on his case.
“So I was riding home at night,” he said. “And I was riding on the sidewalk, I was. Suddenly out of nowhere, these two police come up to me and grab me. I could tell they were excited, they were like, ‘We got one.’ Next thing I know there’s like five more police there, and they’re patting me down, asking me if I have any warrants. I say, no, I don’t have any warrants. And they’re like, ‘Are you sure?’ Like they’re surprised.
“So I say, ‘Am I sure? I would know, wouldn’t I?’ So they run my name, and there are no warrants, and they let me go with this summons.”
Finley had already had to come to court three times for that ticket. The first time, he’d pleaded not guilty just to get the chance to argue for a different kind of sentence, since he couldn’t afford the fine. So they set a trial date for him in January 2013, and at that date, the arresting officers didn’t show, so the state couldn’t proceed. A month later, in February, the same thing happened, and they put his date back another month.
March rolled around and Finley came back to court on the appointed date. I showed up to see if he would succeed in talking his way into jail this time. The judge was about an hour late. A hundred people who had been told to appear at nine had to wait an hour just to hear His Honor, a walrusy-looking old man with a shiny bald head and a long handlebar mustache, give a speech that he clearly thought was funny about the proceedings ahead.
“Get your wallets ready!” he cracked. “We take Visa and Master-Card here, but no American Express!”
The fun began when a South Asian man was called up to the front for peeing on a sidewalk somewhere in Brooklyn. He started to explain himself in heavily accented English when the judge, irritated already in his first few minutes at work, cut him off.
“Whatever you did, don’t do it again,” he said, banging a gavel. “ACD. Next!” (“ACD” means “adjournment in contemplation of dismissal,” a prelude to having your case dismissed.)
The next few defendants weren’t so lucky. Fifty dollars, a hundred, twenty-five. Minute after mindless minute, fine after fine.
“Just like a lemon,” said Finley. “They just keep squeezing and squeezing.”
An hour or so later Andre got summoned to the front. The judge took one three-second look at his summons and instantly recognized that there was an error on the ticket, that Andre shouldn’t have even had to go to court in the first place. (The officer had written him up for the wrong kind of bicycle-riding violation.) Case dismissed. Good news, but it had taken nearly a year and almost fifteen hours in court to clear it up.
This was a man who was literally trying to go to jail instead of paying a hundred-dollar fine, and he couldn’t do it without multiple court dates and nearly a dozen hour
s of waiting and court time. It’s impossible to overestimate the impact, in terms of time and sheer frustration, that all these mindless arrests and summonses have on the people targeted.
“The really crazy thing is, you come to court and you’ll sit there all day waiting for your name to be called,” Finley says, referring to his trial dates. “I’ve probably sat ten hours in the three times I’ve come to court. That’s my community service right there, when you think about it.”
It shouldn’t be like this, at least not for the more serious cases. New York State has a speedy trial law, which mandates that the state must bring a misdemeanor case to trial within ninety days of arraignment. But in practice, the process gets stretched out almost indefinitely, thanks to an incredibly devious perversion of the system that the state has long used to bully misdemeanor defendants into pleas.
The public defender Josh Saunders is a young, trim, well-dressed, fair-haired lawyer who went to a good law school and had a chance to go the highly paid corporate route, but he just couldn’t stomach it. Like a lot of public defenders, the payoff for his job is that he likes working with clients who are actual human beings instead of bloodless companies, and he also likes the fact that he can sleep at night with a clear conscience. But Saunders is frustrated by the system. He’s got a client who is a perfect example of the type of person victimized by the state’s “speedy trial” trick.
Arrested on a domestic violence charge, Josh’s client came to court only to find out that the prosecution was “not ready” to proceed with its case. Usually this means they don’t have a witness lined up, or there’s some other problem.
So the DA asked the judge for fifteen days. The judge granted the fifteen days, then looked down at his calendar and found that he had no availability to actually hear the case fifteen business days later. So instead, he scheduled the defendant’s hearing for more than a month later.
But here’s the catch. Days after the DA won his delay, he filed a “certificate of readiness,” stating that the prosecutor’s office was, indeed, now ready for trial. But the trial had by now already been adjourned for more than a month. (Commonly, it can be two or three months.)
