We are in the middle of the most important social movement for police reform in a half century, and raw anger has begun to settle down into a program of action. The transition is not easy. The focus and moral certainty that have fueled the Black Lives Matter movement have opened a rare window of opportunity for real and lasting change, but the task of itemizing what exactly those changes should be has surfaced new ambiguities and concerns.
The first plank of Campaign Zero, the movement’s agenda for police reform, illustrates the complexity of the issues that now demand attention. Provoked partly by the senseless death of Eric Garner during an arrest for selling untaxed cigarettes, Black Lives Matter has called for an end to Broken Windows policing—to the “decades-long focus on policing minor crimes and activities” that has “led to the criminalization and over-policing of communities of color and excessive force in otherwise harmless situations.”
The abuses committed in the name of Broken Windows policing make it easy to understand this position, but an unqualified call to end it is misguided. It amounts to a call to deprive black communities of a crucial component of police service, and it diverts attention away from the need to reform the way officers carry it out.
I have long advocated something like Broken Windows policing (though I would prefer to call it by its older name of “order maintenance” policing) because I believe that the “minor crimes and activities” it targets matter enormously for the health of the urban public realm, particularly in our most disadvantaged urban communities. Wealthy suburbanites whose children can play on swing sets in their private backyards may not care very much about how drunks and misogynists behave in neighborhood parks and on the sidewalks, but those who live in cramped urban quarters often have nowhere else to play. People who drive their private cars from their garages to the company parking lot may not care about graffiti and incivility on the subways, but those who have no other way to get to work almost always do. Police-community meetings in even in the toughest urban neighborhoods are at least as likely to focus on quality of life offenses like noise, sidewalk drug pushers, and verbal harassment as on robbery and assault because those offenses matter enormously to the residents who live there. At their best, quality of life rules aim to safeguard the fair use of sidewalks, parks, subways, and other corners of the urban public realm that are designed to be used by everyone.
Although this aspect of policing, paying attention to disorder, serves an essential purpose, it is also ambiguous and inherently controversial. Public spaces are shared spaces, and the people who share them inevitably disagree about how they can legitimately be used. The rules we develop to govern public spaces are often vague (as with the prohibition against “disorderly conduct”), and when they are clear they may leave many people unhappy (as with bans on skateboarding or bringing alcohol to a picnic). It is easy to lose sight of the purpose of rules like these, so that they become just a miscellaneous set of prohibitions united only by the fact that they seem trivial compared with rape, robbery, and assault. That aimlessness leaves them vulnerable to the kinds of abuses that have drawn the attention of Black Lives Matter.
As long as modern police forces have been around, they have used disorderly conduct statutes and many other public order rules to investigate suspicious and unpopular people in circumstances when doing so overtly would be forbidden. In too many cities Broken Windows policing has come to mean the aggressive use of public order rules as an excuse to question, search, detain, and punish anyone a police officer happens to find suspicious. Mayors and police managers have instructed their officers to crack down on public drinking, trespassing, and jaywalking not out of any intrinsic concern about the impact of those behaviors on the vitality of the city’s public realm but to provide more opportunities to search for guns and fugitives. The Ferguson Police Department’s intensive use of a city code provision regulating a pedestrian’s “manner of walking in the roadway” to run warrant checks and question suspicious people is only one of many examples.
When practiced this way, it is a remarkably corrosive and indiscriminate approach to crime control. The overwhelming majority of people detained or arrested are not guilty of the suspected crimes; they are humiliated or drawn into the byzantine misdemeanor courts for nothing, except for the bare possibility that the widespread use of such aggressive surveillance will occasionally uncover something significant. These strategies are also, as many progressive police officials have recognized, simply ham-fisted strategies for fighting crime, akin to “shooting fish in a barrel” as Cincinnati Police Chief Thomas Streicher once put it.
Ironically, the long history of efforts to downplay or even eliminate the order maintenance function has contributed to this particular form of overkill. Convinced that the real mission of policing should focus entirely on crime control, the police have invested heavily in the tactics and attitudes appropriate to serious wrongdoing. Officers receive detailed training about how to use their weapons and carry out an arrest, they enthusiastically embrace the “zero tolerance” rhetoric of swift and unyielding punishment, and they are repeatedly warned about the danger that may lurk in every interaction.
The venial wrongdoing that proper order maintenance policing targets calls for a different type of response. It results more often from thoughtlessness than from malice, and in any case each offense taken in isolation is simply not very serious. Although the accumulation of many incidents of minor misbehavior can quickly make a park or sidewalk nearly unusable, it is unreasonable to hold each minor offender responsible for the sum total of harm. Violations of public order rules almost always call for education, reminders, and warnings rather than arrests. Even in the face of defiance they call for modest sanctions and restraints—citations, court summons, and perhaps temporary detention of an unruly drunk on the street rather than a trip to the jail in a patrol car and a permanent misdemeanor record.
That is what order maintenance at its best should involve, but the reality in many cities is very different. Most criminal justice officials have devoted too little time and effort to developing the distinctive legal and interpersonal tools needed to manage quality of life offenses, so when patrol officers do find themselves called on to do something about them they have only the harsh tactics designed for rapists and robbers to fall back on. (A welcome exception is the De Blasio administration’s recent initiative to reform the way criminal justice officials handle people suffering from mental illness, which aims to provide officers not only with better skills at de-escalation but also new legal tools short of arrest, such as temporary detention in community-based drop-off centers.)
The extravagantly indirect justifications for Broken Windows policing may have unintentionally reinforced these overzealous responses. Police are told that when people get away with minor infractions, that may send a signal to would-be predators that the neighborhood is out of control. They are told that petty rulebreakers may have also committed more serious crimes. Along the way, the harsh judgments applied to serious crime may transfer to these minor offenders as well. A man discreetly urinating or taking a drink out of a paper bag in an alley becomes a “bad guy” for whom arrest is entirely appropriate. Everyone who breaks a traffic rule, jumps the subway turnstile, or sells used magazines on a sidewalk becomes a potential miscreant who demands a show of force.
It does not have to be this way. Over the years the most progressive police agencies have understood that their role in protecting the quality of life is distinct from their role in controlling serious predatory crime. The task is not a matter of strictly enforcing clear-cut rules that everyone already understands but of reminding the users of public spaces about the special forms of self-restraint they need to observe in environments they share with others. There is less need for deterrence and incapacitation than for education.
In the 1990s, the New Haven police department developed the most elaborate guidelines for order maintenance work that I have seen, calling on officers first and foremost to “educate the public about civility, the consequences of incivility, and the laws that oblige citizens to behave in particular ways.” It assumed that those who violate public order rules often “do not fully understand their obligations” but that “if those obligations—for example, regarding a noisy car or public drinking in parks—are patiently explained, they will adhere to the law”. Departmental guidelines insisted that officers should only resort to citations or arrest when those reminders and appeals fail. This commitment to informal modes of enforcement and the view of arrest as a last resort is also central to the philosophy of many of the most prominent advocates of order maintenance policing, including “Broken Windows” coauthor George Kelling and New York City Police Commissioner William Bratton.
It would be unfortunate if Campaign Zero’s call to end Broken Windows policing was taken as a call for police to simply ignore quality of life offenses in urban public spaces. The deepest failure of modern policing in this area is not the renewed interest in public order offenses. It is the failure to recognize how distinctive this crucial part of the police mandate is.
Over the past several months many people have argued that the problem with the police is that we have asked them to do too much, but the opposite may be more nearly true. By looking at the police as a single-minded force for crime prevention, we invest every interaction with significance and authority that is rarely warranted. We should demand an end to the abuse of public order rules as all-purpose excuses to run background checks and search for contraband, and we should condemn the cavalier use of heavy-handed tactics to enforce those rules even when they really do need to be enforced. But to achieve those goals the police will need to take their order maintenance role more seriously, not less.
At a moment in time when the most obvious problems in police work involve the excessive use of police authority, the simplest response is simply to call for retrenchment. But the problem in black urban neighborhoods today and throughout history has not been that police pay too much attention to them. It is that they pay the wrong kind of attention—that they have subjected black communities to a combination of neglect and persecution. Calls to simply abandon Broken Windows policing are calls to deprive black communities of an essential dimension of police service that wealthy white communities take for granted.
David Thacher is an associate professor of public policy and urban planning at the University of Michigan.
