The Arpaio Pardon and the Judiciary

Last summer, I tweeted about my experience clerking in the District of Arizona for the racial profiling trial of Joe Arpaio. That led to some news coverage and an op-ed in the Washington Post. It's nice to get recognition, but now that Arpaio has announced a senate run the stakes are quite serious.

Arpaio's career and the Arpaio pardon are among the most awful examples of where law enforcement has failed in this country. We rely on law enforcement, in this country, to carry out laws made by others. At his most fundamental, what Joe Arpaio did was decide what he thought the law ought to be, and then enforced that law. When it was shown in court that he was wrong (in front of a judge who, as I noted, was no liberal) and he was ordered to comply with the law as written, he simply refused. Arpaio represents a law enforcement officer who directed his officers to track, stop, arrest, and jail people who had not committed any crime. People that the officers knew had not committed any crime.

I have received criticism for my novel The Big Fear from those who seem angry that I paint an unflattering picture of the police. If you are looking for books in which hero cops always get the bad guy and are celebrated even when they bend the rules a little, I suppose you won't like mine. But given we are living in a world that can produce a Sheriff Joe Arpaio, and which threatens to produce a senator Arpaio, I can't imagine writing them any other way.

Ray Chandler, T.S. Eliot, and Crime Fiction - in Fiction Books

Since the release of The Big Fear, I have been asked to write a number of guest columns. I'm linking to them here for those of you who have been reading and following.

Today, I'm posting an article I did for Fiction Books, a British website covering new fiction. The pieces is about my transition from playwright to crime writer and my history with classic crime. Enjoy.

Lies, Damned Lies, and Statistics

It’s the beginning of the year, and that means it’s time for police departments, police unions, and police critics to argue over the meaning of last year’s crime statistics. Here in New York, the debate has fallen along familiar lines—the police and the administration touting greater safety (and claiming credit for it), while scaremongers howl that the numbers are overstated, and critics complain that the arrest patterns show racial and social disparities. There is a great overview of the typical retrenchment, played out with this year’s numbers, by Al Baker and David Goodman in the Times. My thoughts, as usual, are that everyone is a little bit right and a whole lot wrong.

Statistics played a huge role in the Bloomberg-Kelly era – every year Commissioner Kelly touted a drop in crime, and critics pointed out the geometric increase in stops and frisks. From 2002 through 2006 the number of stops increased from 97,296 to 506,491. That wasn’t public at the time, of course, because the NYPD, in violation of a legal settlement, was refusing to disclose them. At the CCRB, we knew that stops were way up, because complaints of stops were way up. In the impeccable bureaucratese that I favored at the time, I wrote in our 2005 report that “complaints involving abuse of authority allegations such as ‘question and/or stop’ have risen at rates higher than complaints in which force, discourtesy, or offensive language allegations are lodged.”

One statistic we always tracked internally, once we got the stop-and-frisk numbers, was how many stop-and-frisk complaints there were in comparison to the number of stops. It was a remarkably stable number—from 2006 through 2012, the CCRB would receive, on average, one complaint for every 300 stops conducted by officers.

Criticizing stop-and-frisk (which by that time had been found unconstitutional and was already in decline) was a central prong of de Blasio’s campaign, and led to the early narrative once he took office. Without the enormously aggressive stop-and-frisk program, so the critics said, crime would immediately bounce back to 1970s levels. During de Blasio’s first week, there were more than a few articles suggesting that a crime wave was upon us. After all, there were eight murders in the first five days of 2014, two more than in the first five days of 2013—the city was “on pace” to see over five hundred murders once again.  (in the end, 2014 turned out to be a record low year for murders).

This year brought the welcome spectacle of two police commissioners behaving like six-year olds in the sandbox, calling each other names and questioning each others’ success. The personal animus between Kelly and Bratton appears untethered to any policy choices. The first time they went at it, when Bratton replaced Kelly in 1994, Kelly was the advocate for community policing and Bratton wanted a tougher hand. Now they have traded roles, and you would think from their public statements that each has simply reached into the other’s press kit from twenty years ago.

For the record, the crime statistics this year are pretty straightforward, as they have been for about ten years: nothing has changed. Murders apparently went up from 333 to 350, but in a city of 8.4 million people, that means your chances of getting murdered last year increased from 0.0039643% to 0.00416667%. Higher than your chances of winning the Powerball, but still. Minor crimes are reported as going down. And here’s the thing. Of course the numbers are fake. Or at least a little fake. If you walk into a precinct and say that someone punched you in the face and took your wallet, the desk officer can say that’s a felony robbery. Or she can say that it’s a misdemeanor assault and a misdemeanor larceny. One of those helps her get a promotion, and one of them doesn’t, and you will almost certainly never be the wiser. Crime statistics are so pervasively and uniformly underreported that when the LA Times analyzed five years of data—while Bratton was commissioner—and discovered that 14,000 crimes were misclassified, the result in the New York papers was a collective yawn

But you can only fake the statistics so much. The old saw that you can’t fake murder statistics because you can’t hide the bodies isn’t true, because whether or not a death is a “murder” as opposed to some act of negligence can’t always be determined when the person dies. (Three guesses as to whether the 333 murders in 2014 included Eric Garner, for example). Rape statistics are totally unreliable because rape is so dramatically underreported. But there are only so many tricks. Whatever you were doing five years ago, you are probably doing it now. So the statistics are probably a pretty good measure of relative crime from one year to the next, even if the top-line numbers are fudged. And over the past decade, crime decreases (or occasional increases) have been in the single-digit percentages. Crime came down twenty years ago, and stayed down. That’s really about it. That’s why when the NYPD reports its yearly statistics in historical terms, the most recent year it uses for comparison is 2001

There is only one real story from the crime statistics last year. Ray Kelly’s stop-and-frisk program has been wholly, totally, and completely discredited as a crime fighting tool. In 2012, with the program already starting to decline, the NYPD stopped 532,911 people. By 2014 that had dropped to 45,787, and while the final 2015 numbers are not yet released, as of October they were on track to be about 25,000. That’s a 95% decrease in three years. If stop-and-frisk had had any impact on crime whatsoever, it would somehow have been reflected in the numbers (and even if you think there is some lag, we are now two years past the close of the stop-and-frisk era). Statistics really only tell stories when you see big moves. And we have seen a big move downward in stops, without any big move in crime. The case is closed: stop-and-frisk did not lower crime.

That’s the police side. But as most of you know, I am really as interested (or more) in my old shop, the CCRB. The 2015 CCRB report isn’t out yet, and I will write about it when it is. But the most appalling misstatements about criminal justice statistics this past year did not come from either police commissioner. They came from Richard Emery, the new CCRB board chair. In 2015, Emery, in an effort to show how much complaints have dropped, allowed the following chart to be printed in the CCRB’s mid-year report:

Wow what an enormous drop in complaints! - Except that all of those numbers are year-end figures, except for the last one, which covers only a six-month period. This is the sort of chart that an eighth-grade math teacher would use as an example of dishonest statistics. Emery compounded the mendacity by saying that the drop in complaints represents a “shift in the NYPD culture towards civilians." This is utter nonsense. As I said above, in most years, the CCRB would get one complaint for every 300 stops. In 2014, with stops way down and complaints kind-of-down, it received one stop and frisk complaint for every 43 stops. In relation to actual police contact with civilians, there was actually an increase in complaints to the CCRB—not surprising, given the massive attention to police conduct that has been in the media in the past few years.

From every perspective, the lesson of crime statistics this past year has been the lesson of stop and frisk. Stop and frisk has been nearly abolished while crime is steady – almost a controlled experiment showing that the program didn’t lower crime. And complaints are down almost entirely because stop and frisk is down—there is no evidence that the stops actually conducted are any different than they used to be. If you were to look at overtime abuse, PD promotions to specialized squads, and likely dozens of factors I haven’t thought of, stop and frisk would likely play a role. All of the rest of it is just noise.

Small-bore Solutions to Big-time Problems

As someone who spent close to a decade investigating police misconduct, researching and drafting policy recommendations, and working with stakeholders on issues of policing, I support the goals of the current movement, but am sometimes frustrated by the proposed resolutions. The current wave of activists wants to draw attention to the problem of overpolicing in this country—either as embodied by police shootings, primarily of young black men, or as the militarization of police departments, or as zero-tolerance policing masquerading as “Broken Windows” policing. So far so good. There is a crisis of overpolicing in this country, and for too long, nobody paid attention to it. I should know—a decade ago, much of my job involved trying to get newspapers to run stories about police misconduct more prominently.

But beyond publicizing the problem, what demonstrators are asking for most is increased criminal prosecution of police. But I don’t think that throwing cops in jail will deter police misconduct any more than throwing street-level offenders in jail deters muggings. And it kind of saddens me when people who criticize criminal over-enforcement in one context cry for punishment in the other. The criminal law is erratic in its application and filled with procedural complexities that can scuttle a case. Police defendants routinely get great lawyers, usually waive their right to a jury trial, and present technical defenses that are effective with judges. That’s how our criminal justice system, which is predicated upon the principle that it is better to let ten guilty people go free than to convict one innocent person, is designed. I understand that in most contexts it doesn’t fulfill that design. But I don’t feel comfortable demanding aggressive prosecution and stiff criminal penalties as soon as the accused is a police officer.

Sure, when Walter Scott or Laquan McDonald is shot while running or walking away from the police, murder charges should be brought. In both of these cases, murder charges have been brought. Just as charges have long been brought against police officers when the evidence is strong enough. It is true that it is hard to meet the beyond-a-reasonable-doubt standard to convict a police officer. But it’s hard to meet that standard for anyone; and it certainly isn't impossible. After all, the Manhattan District Attorney won a homicide conviction against Bryan Conroy for shooting Ousamane Zongo in 2005, and the Eastern District of New York convicted three cops in the Louima case. Cops have long been routinely indicted and convicted on perjury charges based on video and audio recordings.

What’s more interesting to me is what we can do to limit police misconduct in the first place, rather than how we punish it once it happens. Demilitarizing police departments and ending policies like stop-and-frisk can improve police-community relations, but most civilian encounters that go bad come from police who are responding to a call. And what I saw, over and over again, is that police officers are more likely to make mistakes when they respond to a call with insufficient or inaccurate information. And those mistakes can be lethal.

Most often, officers are given inadequate information because they speed to a scene after hearing a radio code—and little else—from their dispatcher. The woman who made the call that led to Henry Louis Gates getting detained in his own living room said she was calling because her neighbor urged her to, and that it looked to her like the guy had lost his keys and was trying to get into his own house. When Khiel Coppin’s mother called 911, Coppin could be heard in the background saying he had a gun, but his mother told the operator that she thought he didn't. And when a bystander called 911 to say that Tamir Rice was pointing a gun at people in an Ohio park, she said that the gun was “probably fake.” But none of the officers were given all the information that they could have been. They were only given a numbered code (say, 10-52-K, which means in New York that there is a dispute and there is a knife) and if they were lucky, a brief description.

It should be technologically feasible for any department to play the entirety of a 911 call to a responding officer on their way to the scene. I am not aware of any department that does so. While most departments get lots of federal funding for sophisticated equipment, the day-to-day technology of law enforcement is archaic. At the CCRB, we put in funding requests for digital recorders and were denied every year--as late as 2008 we were using manual recorders and cassette tapes for interviews. In many police precincts, they still have carbon copy forms to fill out, which means they still use a typewriter.

 New York allows officers to play back descriptions that were given to them by dispatch to quell civilians who believe they were improperly stopped.  This is a small and extremely powerful tool—when we studied thousands of stop and frisk complaints in 2000, we found that only one had been filed after an officer had played a description back over the radio. But this power still falls short of the easy ask I’m making—let dispatch play for the officers, in full, the call that they are responding to. Radio codes make a lot of sense when there are dozens of officers listening over a scanner. Each car cannot be troubled to hear the long-winded report of a civilian. But once a unit confirms that it is responding to a call, the officers deserve all the information the department can give them. They can hear the whole call, and learn from the caller’s tone, inflection, and language whether the caller fears for her life or is merely annoyed.

We can’t know for certain whether the officers responding to the Gates call, the Coppin call, or the Rice call would have behaved differently if they had been able to hear the full details and the tone of voice of these callers. But they might have. And I could recite dozens of other cases—none of them in the news—where officers might have taken a different stance if they had known everything that had been said to dispatch. And it certainly couldn’t do any harm. It may seem counterintuitive or unbearably small-bore to say that we should give more information to line officers responding to a call. But small-bore solutions are often the foundation of addressing big problems. Playing full calls to responding officers can give them the information they need to assess a situation properly and accurately. And most importantly, it could save lives.