An hour earlier, I was quietly riding the A train home from a folk-music show in Brooklyn. My earbuds were plugged in, my feet propped on the seat in front of me. Sometime around 2:30 in the morning, the train paused at the Canal Street station. A uniformed and armed New York police officer popped her head through the door and beckoned me off the subway car. Within a few minutes, I was handcuffed, ID’d and marched upstairs by two police officers.
That night, I became one more victim of “nuisance laws,” regulations that criminalize small misbehaviors that don’t hurt anyone. These policies have been enacted by cities across the country. In New York, for example, it’s against the law to take up more than one subway seat or even put a foot up. It’s illegal to be in most parks after dark, or to drink beer on your stoop. People can get arrested for asking someone else to swipe them into the subway. (Washington’s Metro system does not criminalize putting your feet up on the subway or taking up two seats.)
This type of zero-tolerance policing has been adapted around the country. In Texas, minors can be jailed for missing more than 10 days of school in a six-month period. In Arkansas, a woman was imprisoned after a $1.07 check she wrote for bread bounced. In Washington, police can arrest residents for minor offenses like letting your dog off its leash or fishing with the wrong equipment. A two-year-old here was even cited for littering. (Officials later dropped the case.)
On its face, this might not seem like a big deal — everyone wants clean subways and orderly cities. But criminalizing small acts can have major consequences for nonwhite and low-income people, who are disproportionately arrested and convicted for these infractions. A USA Today report, which examined data from across the country, found that “blacks are more likely than others to be arrested in almost every city for almost every type of crime. Nationwide, black people are arrested at higher rates for crimes as serious as murder and assault, and as minor as loitering and marijuana possession.” In New York in 2014, 43,000 people were arrested on public transportation; just 3,600 were white, even though whites make up 37 percent of public transit riders. The most recent numbers, from the first six months of 2015, show a similar trend: of the more than 20,000 arrests; fewer than one in 10 people were white.
Those caught misbehaving are often arrested, booked and arraigned in criminal court. They might, as a result, lose their jobs or have to scramble for child care. They might be asked to pay a bail they can’t afford. And a criminal record could cost them assets from subsidized housing to student loans.
As Scott Hechinger of Brooklyn Defender Services told the New York Times, an arrest can derail a person struggling to make ends meet. “Most of our clients are people who have crawled their way up from poverty or are in the throes of poverty. Our clients work in service-level positions where if you’re gone for a day, you lose your job. People in need of caretaking — the elderly, the young — are left without caretakers. People who live in shelters, where if they miss their curfews, they lose their housing. Folks with immigration concerns are quicker to be put on the immigration radar.”
In other words: A small mistake could ruin your life.
Criminalizing small infractions is part of a larger law-and-order effort known as “broken windows” policing. Popularized by two criminologists in 1982, this theory encourages law enforcers to arrest people for low-level offenses including loitering, public drinking and littering. Creating a semblance of order in a neighborhood discourages more serious crimes, the scholars argued.
This method was implemented in New York under Mayor Rudy Guiliani in the 1990s; during that time, the city saw violent crime drop by more than 56 percent and property crime by about 65 percent. Outgoing New York Police Department Commissioner Bill Bratton credits broken windows policing for the declines, saying the method makes neighborhoods cleaner and safer by stopping even the tiniest violation.
But opponents see it differently. They say the practice leads to unwarranted aggression against low-income people and minorities. “The kinds of things that [people of color] get arrested for, these innocuous acts, have been virtually decriminalized among white communities,” said Robert Gangi, director of the Police Reform Organizing Project, which tries to raise awareness of racial profiling by New York police. New York’s nonwhite residents disproportionately bear the burden of arrest. In 2015, for example, about 153,000 were arrested or given tickets for sneaking into the subway. Ninety-two percent were people of color. According to the New York Times, about 300,000 criminal summonses were issued by officers last year, “many in minority neighborhoods.”
This is something Timothy Middleton knows all too well. Middleton, who is black, was arrested on the subway last fall for assault in the third degree — the most minor assault charge — for what he called a “shouting match.”
“The police were very derogatory and disrespectful . . . and I spoke up for myself, and they didn’t like that too much,” he said. Middleton spent a few hours in a cell, received his court date and went home.
That’s when he found out that, because he had a charge pending, he’d been automatically suspended from his job without pay. Middleton worked as a peer specialist at a social-service nonprofit, helping people with mental disabilities.
He survived three months of unemployment, borrowing money from friends and waiting for his charge to be resolved. He even went on welfare. When his case was finally resolved (a judge gave him a verbal warning to stay out of trouble for a year), his employer let him know: His job had been filled by someone else. “And it was the perfect job and perfect hours,” he said. “I was enjoying what I was doing, helping people. . . . I was just on a roll, you know?”
Others have similar stories. In 2009, Juan Castillo was arrested for putting his foot up on a subway seat so he could inject himself in the thigh with insulin. Castillo, a diabetic, was arrested and jailed for 30 hours, and the police refused to give him access to insulin. He ended up in a hospital. (Castillo later sued the city; he was awarded $150,000.) Flavio Uzcha, an Ecuadorian line cook, was brought in for standing too close to the door in a packed subway car in 2011. When he was arraigned, authorities discovered a 2002 deportation order, and he was forced to leave the United States.
The NYPD has denied allegations of racial profiling and defended its “broken windows”
practices, arguing that they make the transit system and city much safer. But in recent months, they’ve also begun to move away from making arrests for minor offenses. In March, officials announced that officers in Manhattan will no longer arrest people for minor crimes like riding between subway cars or drinking in public. Instead, they will get a criminal summons. In May, the New York City council passed a measure creating a civil process for some common low-level infractions, like littering and excessive noise. “We pledged to reduce unnecessary arrests while protecting the quality of life of all our residents,” Mayor Bill de Blasio, said at the time. “This legislation is an important step toward this essential goal.”
For my arraignment, I had to report to the New York City Criminal Court in downtown Manhattan, where I spent a few hours sitting in a pew behind a beefy man in handcuffs. Eventually, a judge called me up and gave me a light punishment: probation.
“You didn’t have a collateral consequence,” Legal Aid Society spokeswoman Pat Bath told me later. She was right. I didn’t risk my job, or my family, to appear in court.
The two teenagers I was arrested with were not so lucky. They had been busted for walking between subway cars — a constant sight, but still illegal. One had been arrested three times in the past year, the other two times for putting his foot up on the subway and for panhandling and interfering with “the movement of passengers.”
One of them didn’t show at court the day I was there, common among teenagers. “So now” — for putting his feet up — “he’s a fugitive,” Gangi said.