The unintended consequences of prosecuting low-level crimes

JONATHAN LIPPMAN | 2/22/2018, 10:14 a.m.
With momentum toward closing the dysfunctional jails on Rikers Island and continuing reductions in crime, New York City is making ...
Handcuffs

With momentum toward closing the dysfunctional jails on Rikers Island and continuing reductions in crime, New York City is making progress toward a better justice system. Despite steps in the right direction, the road to shuttering Rikers is paved with hard decisions and, most importantly, the recognition that our criminal courts are not the solution for all of society’s ills.

This reality is in the spotlight because of Manhattan District Attorney Cy Vance’s recent decision not to prosecute most people who are arrested for jumping subway turnstiles. Today, when police officers stop someone for jumping the turnstile, they can either arrest the offender and bring the offender to court for criminal prosecution, or instead issue a civil or criminal summons.

As Vance has recognized, prosecuting turnstile jumpers for these “theft of service” crimes clogs our criminal court system and unfairly affects low-income Black and Brown New Yorkers, with little or no impact on public safety. Many people who are stopped for theft of services already receive a civil summons rather than criminal charges. The NYPD has made progress in prioritizing summonses over arrests. But Vance’s decision recognizes that too many people continue to be arrested—more than 8,000 per year in Manhattan alone.

Last year, the Independent Commission on New York City Criminal Justice and Incarceration Reform that I chair—a nonpartisan group of civic leaders from across the city—concluded its study of our city’s justice system. In our April 2017 report, “A More Just New York City,” we issued a blueprint for shutting down the jails on Rikers.

One of our recommendations was that New York decriminalize low-level offenses such as theft of services and instead handle them solely with civil summonses—akin to a ticket for speeding—rather than with criminal charges. Our goal was to prioritize accountability without wasting the resources of the criminal courts, prosecutors and public defenders on minor offenses and without imposing the collateral consequences of criminal arrests on low-income New Yorkers.

We analyzed all 249,776 criminal cases that passed through the New York City courts in 2016. In more than four in five (82 percent) of those cases, the most serious charge was a misdemeanor. Most of these cases involved low-level unlawful conduct, including jumping the subway turnstile, petty theft, possessing a small amount of marijuana or other drugs, or driving with a suspended license. These charges alone accounted for 41 percent of all criminal arrests.

The result is that our criminal courts are bogged down with low-level offenses. As the Manhattan District Attorney’s office has noted and as I know from a lifetime in the courts, thousands of cases are thereby delayed every year because there is no available court to hear them. These delays keep the courts from addressing more serious charges. They also keep people lingering in jail, waiting for their day in court.

In many cases, the enforcement of low-level crimes sweeps New Yorkers into the system who have never been arrested before, giving a potentially life-altering criminal justice record to someone for a minor offense. Criminal charges can have serious consequences on employment, housing and potentially immigration status—particularly for those who are already poor. Offenses such as theft of services are also driven by deeper cycles of homelessness and mental illness that are only exacerbated by criminal charges and jail time. And, people of color are much, much more likely than whites to be arrested. The data are stark: in 2016, 89 percent of the people stopped by police for theft of services were people of color.

That is why we believe Vance’s decision not to criminally prosecute the majority of these arrests is a step in the right direction.

New York City has come a long way. But we must continue to shift from a mindset that views the criminal justice system as the path of least resistance to one that treats it as a place of last resort.

This shift will not take place overnight, but it is necessary to close Rikers once and for all and to provide a better system for all New Yorkers.

Jonathan Lippman is Of Counsel at Latham & Watkins LLP and a former chief judge of the State of New York and chair of the Independent Commission on New York City Criminal Justice and Incarceration Reform.