NYPD ceremony in Times Square (photo: @CommissBratton)

Monday morning the City Council will begin consideration of a series of bills, called the Criminal Justice Reform Act, which would limit the use of criminal penalties to manage a variety of low level “quality of life” offenses such as public drinking, park code violations, noise, and public urination. City Council Member Vanessa Gibson, chair of the public safety committee, said she hopes these changes will reduce the problem of excessive criminalization in communities of color, a sentiment echoed by Council Member Rory Lancman, chair of the courts committee, on WNYC radio last Friday. Lancman noted that too many areas of the city have experienced overpolicing and overcriminalization.

The Act, being spearheaded by Council Speaker Melissa Mark-Viverito,  already has broad support in the Council and the endorsement of NYPD Commissioner Bill Bratton, and thus, Mayor de Blasio. It's encouraging that political leaders in New York City are exploring ways of reducing the impact of the criminal justice system on communities of color, but this package of reforms is at best a baby step, and at worst, may open the door to more racially discriminatory police actions.

The bills, if passed, would create new civil penalty options for these offences by allowing police to choose between a criminal summons and a civil one when encountering an offender, a choice made based on departmental guidelines. The criminal codes remain on the books per Bratton’s insistence, which he says is necessary so that officers can demand identification, conduct searches, and perform background checks.

With a criminal summons, people must appear in summons court and if they fail to do so a warrant is issued for their arrest. Over a million such arrest warrants are currently on the books, leading to numerous unfortunate encounters with the police, such as being arrested on the way to work or to pick children up from school.

The new civil process, to be administered by the city’s Office of Administrative Trials and Hearings, will be more like traffic court in which people must pay a fine or perform community service, but no warrant will result from failure to comply. Instead, a civil judgement will be issued, which could result in the garnishment of wages or bank accounts, or seizure of property. This might also affect one’s credit rating. None of this will result in incarceration, which is positive, but the penalties can still be substantial, with fines ranging from $25 to $250 for a first offense.

In addition, these financial penalties are likely to fall heaviest on areas where quality-of-life, or broken windows, enforcement is the most widespread, removing resources from already poor communities. While some will escape these penalties through community service programs, many working poor will not.

Vincent Riggins, chair of the public safety committee of Community Board 5 in East New York has actually called for the return of half of all those fines to the local community board to be spent on community development projects. It is a great idea that would reduce the financial incentive that has driven excessive and discriminatory summonsing in places like Ferguson, MO.

Riggins has raised another important point. By leaving these offenses on the books, rather than truly decriminalizing them, the door is left open for the kinds of invasive policing experienced under stop, question, and frisk in recent years. By keeping open alcohol an offense, police will have “reasonable suspicion” to stop anyone drinking a beverage in a bag or unmarked container, potentially leading to exactly the kinds of unwarranted police intrusions that we have worked so hard to reduce. While Bratton rightly touts reductions in police enforcement encounters, racial disparities persist.

Another area of concern is the discretionary nature of the new rules. The NYPD insisted that it would only support the bill if it retained the ability to treat these offences as criminal when officers felt it appropriate. This gives them the ability to demand ID and run people for warrants. But what will determine who gets a civil summons, who gets a criminal one, and who gets run for warrants? There is a real risk that the more punitive practices will become heavily concentrated in exactly those poor, non-white communities that bore the brunt of stop, question, and frisk, and who bear the burden of most criminal summonses and low level arrests now.

Council Member Gibson says that there will be a process of determining policies for guiding officer discretion, and that the City Council is calling for the default to be a civil summons. This outcome, however, is far from assured, since the ultimate decision rests with the NYPD and the officer on the street. Therefore, there is a real risk that the police will perceive the need to take harsher and more invasive action in exactly the same places they do now, with milder penalties reserved for more prosperous parts of the city. If these changes are enacted, this must be monitored closely, something Council Members Jumaane Williams and Mark Levine are proposing through a bill mandating reporting by the NYPD.

Any reduction in the use of criminal penalties is welcome, but this measure retains an adherence to using punitive mechanisms to manage so called quality-of-life problems in keeping with the deeply conservative Broken Windows theory. There is nothing in the bill to develop non-punitive mechanisms for addressing community problems.

As one caller to WNYC pointed out, the current criminal penalties seem to be largely ineffective in reducing the amount of public urination, why should the civil penalties be any more effective? They won’t. The reality is that public bathrooms are largely non-existent in New York City. Other major cities around the world have much more developed amenities in place and have largely avoided this problem. If you don’t want people to pee in public, give them functional and accessible public bathrooms, not a choice between criminal and civil sanctions.

In addition, a lot of quality-of-life problems are driven by pervasive underemployment for youth of color, a lack of positive social activities for young people, and widespread homelessness. While the Mayor and City Council have started to acknowledge the extent of some of these problems, their focus has been primarily on hiring more police and tinkering with what kind of punitive sanctions to use, rather than a major redistribution of resources away from police, courts, and prisons, and towards housing, healthcare, and youth services.

In his book The Silent Black Majority, Michael Fortner shows that the push for criminal justice solutions to community problems was supported by many in poor black communities and my own research on the rise of quality-of-life policing in the ‘90s shows the same thing. But what I also found was that these communities also called for youth centers, improved housing, and better schools, but what they got was only the policing and prisons. It’s time our political leaders quit asking the NYPD for permission to really shift resources away from the criminal justice system and towards improving communities in positive ways.

In Los Angeles, the Youth Justice Coalition has called for redirecting 1% of all criminal justice spending ($100 million) in the county towards youth jobs, community centers, and violence reduction outreach workers. That would be real reform. The Police Reform Organizing Project here in New York is currently exploring a similar initiative on an even broader scale. Crime and disorder matter and need to be addressed, but we must strive to develop affirming rather than punitive solutions whenever possible. If the City Council is serious about reducing the negative impacts of the criminal justice system, it should start by revisiting its decision to expand the NYPD. More police with more discretion is not the answer.

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Alex S. Vitale is associate professor of sociology at Brooklyn College and author of City of Disorder: How the Quality of Life Campaign Transformed New York Politics. He is senior policy adviser to the Police Reform Organizing Project and serves on the New York State Advisory Committee to the US Civil Rights Commission. You can follow him on Twitter: @avitale