“What is your role as a prosecutor? Do you see it as prosecuting the last crime or preventing the next one?” was the question Professor George Kelling asked a gathering of attorneys in Washington DC. While it was a somewhat rhetorical question, it made me think that far too often we have concentrated on the former and ignored the latter.
Professor Kelling was speaking at the National Association of Attorneys General Symposium on Crime Reduction. It was held in conjunction with the National District Attorneys Association. In my role as a Vice-President of the International Association of Prosecutors, I was invited to join 80 other prosecutors, District Attorneys and Attorneys-General.
The information gathered through the presentations is too voluminous to relay in a paper such as this, however I have assembled what I consider to be the main areas touched upon and where there may be some lessons for us in Australia.
Broken Windows
Professor Kelling is the co-author of The Broken Windows Theory. He postulates that a broken window is symbolic of a community that is apathetic; a community that doesn’t care about itself or about its citizens. However if the window is fixed almost immediately it shows that the community is engaged and paying attention and has civic pride. The longer the time taken to fix the window is directly proportional to the state of the community.
Professor Kelling said that while law enforcement generally concentrates on the “bigger” crimes it is the smaller “quality of life” crimes that truly concern a community. Broken Windows Theory was applied in New York City around 1991. The theory came about due to a study that showed that frequent foot patrols by police led to a decrease in crime. It appeared that the police were dealing with small matters when they were on foot patrol and “nipped them in the bud” before they became more serious. It was an important and necessary step in order to encourage the people to take public order seriously.
The essence of the Theory is that police need to work with the community (including street people). The focus is not on arrest; it is on education and warning individuals. Arrest is used only as a last resort. This approach requires a great deal of discretion on the part of the police since the primary focus is not on arrests. The police implementing the Theory had to learn to use their discretion widely and wisely.
For those who had visited New York City in the 1980s and early 1990s, there is no doubt that it was a very dangerous place. This was what made Crocodile Dundee’s 1986 exclamation of “eight million people all wanting to live together; New York must be the friendliest place in the world” such an amusing observation. In 1990, there were over 2200 murders in New York.
The attention was initially focused on the subway. From my own experience in New York in the very early 1990s the subway was somewhere you avoided at all costs. Robberies were common place, homeless people lived there, panhandlers were in your face begging for money and eye contact with another human being was simply not done. The few times I ventured there, persons jumped turnstiles and exits were vandalised allowing entry without charge. This ‘window’ was well and truly broken.
In utilising Broken Windows Theory, the head of the Transit Police, Bill Bratten, began enforcing the laws dealing with minor offences such as fare evasion. Police rode the subway trains and did not ignore any offending behaviour no matter how minor. But they did it with discretion. This was not zero tolerance but rather, zero apathy. Many people who were routinely breaking the law had just “given up”. But when these people were stopped by police and when the community began to see that everyone who was breaking the law was being stopped by police, it gave the community a sense that the police “cared and took pride in our community”.
It didn’t mean that everyone was automatically prosecuted. A great majority just needed to be “shocked back to reality” and once spoken to by police would never engage in that behaviour again. The standards of the community were being lifted. It was not acceptable to ride the subway without paying. Therefore, it was not acceptable to aggressively beg for money there, to sleep there or to commit crime there.
In 1993 there were a quarter of a million fine defaulters. It stands to reason that if you’re the type of person who is going off to commit a crime, you’re not the type to stop and pay your train fare. It was found that 90% of fine defaulters were more serious criminals. By cracking down on this minor petty crime, police were starting to catch people who were involved in far more serious crimes as well.
Police started to build up an information data base and this intelligence was used to track and target criminals. In the long run, this was able to prevent more serious crimes from occurring. Whilst implementing the Theory strengthens communities, police were also finding out who the real criminals are.
For crime to decrease, community attitudes need to change, just as it did in New York. To successfully change the community’s attitude it is vital that you make it public what you intend to do, to get the public ‘on side’. If the public are not ‘on side’, the results will simply not follow.
Bill Bratten is Police Commissioner of New York once again. He proudly told us that in 2013 there were 338 murders in New York City (and that this had fallen every year since 1990 when 2200 murders were recorded). He told us something that I already knew from personal experience and that is that it is safe to walk the streets of New York at any time of day.
Police and the Public
Buoyed by the success of Broken Windows Theory, law enforcement kept the vigilance but lost the discretion aspects. Crime still continued to drop. But the decline in crime does not mean that the community has trust in the police and the courts.
In the aftermath of the WTC tragedy, the police instituted a policy of “Stop, Question and Frisk”. This was an admirable and necessary policy at the time but ultimately it has been abused by police. In the three years between 2009 and 2012, 2.4 million people were stopped and frisked. This resulted in 150,000 arrests. 24.7% of those arrests were dismissed before arraignment. Of those that did end up on court, half of them were acquitted. Of those convicted only 1.5% received actual jail time and 0.1% were for a violent crime. The Stop, Question and Frisk policy had become a waste of time as well as alienating a large proportion of the community.
There is only a very small group in the community that actually offend (about 5-6%), so law enforcement authorities need to use the community to assist as a resource to help confront this group. New studies show that people look for fair treatment at the hands of the police and the Courts. Fair means being listened to. The elements of feeling fairly treated are:-
⢠having neutral authorities;
⢠feeling respected; and
⢠feeling that the motives of the police are sincere and caring.
It is vital that people have trust in these agencies because when they do they comply with the law, they co-operate and report crime and give information because they accept the police to be arbiters of conflict.
At the time, the police did not address these issues and instead, they were still primarily trying to reduce crime by the stop and frisk policies. By engaging in this behaviour, law enforcement deviated from Broken Window Theory and it was no longer being authentically implemented. It had a significant effect on the levels of trust in the police, particularly in young men who were being stopped. The police were seen as less legitimate, less respected and there were constant claims of harassment.
The focus is now on re-building public confidence. Over the years, the police connection to the community had been lost. But the role of the police must be to motivate and reassure the community that the police are trustworthy and are partners in building a strong economic and social community. In short, that they are there to fix the broken window. Police should not be a menacing presence but a reassuring presence.
Overall, the use of the Stop, Question and Frisk policy proved to be ineffective as a deterrence because despite it being increasingly implemented, there had been no drastic decline in crime. On the other hand there has been a dramatic reduction in crime with the other strategies which are based on community involvement. .
No doubt, the implementation of this policy has prevented some crime but it its continued application has led to community resentment and distrust for the police. Now that Commissioner Bratten is back in charge, this policy is exercised far more responsibly and slowly the trust for police is returning to the community.
Police have instead adopted a “guardian” model as opposed to a “warrior” model. Communication is an important factor. Police must be seen to be open and transparent. Here in Queensland, the QPS Facebook page is a great example of how technology can assist in this enterprise. However, the lesson is there; the public need to have faith and trust in police, prosecutors and, ultimately, the courts.
Incarceration
There is no doubt that there has been a reduction in crime in the US. At the same time, incarceration rates as a whole have hit almost record levels. There is still debate as to whether the two statistics are truly related. In Texas, the Attorney-General has no doubt that the very high rate of incarceration is directly responsible for the drop in crime. “We’ve taken the bad guys out of the equation” is his declaration. In a State like Texas there is little doubt that a “tough on crime” strategy does in fact work for violent crimes by keeping those people off the streets for many years.
These statistics below were compiled in 2012. Without trying to interpret them too much, there are certain observations that are very thought-provoking.
- one in every 17 white men had served jail time
- one in every 6 Hispanic men had served jail time
- one in every 3 black men had served jail time
- in 2010 there were 7 times the number of black men in prison than white men
- The USA has 5% of the world’s population but 20% of the world’s prisoners. 70% of those are in prison for non-violent crime.
- Research shows that once someone has reached the age of 45 years, then they are less likely to re-offend. My comment is that this may mean that services should be focused more on the younger generation.
- 700 000 prisoners are released every year and at any given time there are 7 million prisoners on parole.
- 43 -45% of prisoners are returned to jail within 2 years on technical parole violations,
- 33% of prisoners go on to be success stories and don’t offend again. My comment is that we need to look at why this is so and what did we, (or they), do to make them succeed.
Most prisoners don’t stay in prison until they die. At some point they will have served their time and must be released. It is trite to say that a prisoner’s re-integration into the community is dependent upon getting them into employment. Employment gives a sense of purpose and prevents crime but most prisoners need intensive assistance and training to do this. The studies have shown a huge difference between recidivism rates of those who are given extra help (16-20% re-offend) compared with the 43-45% who are given no assistance. Those same studies have shown that the first 3 months after release are imperative to a prisoner’s chances of not reoffending. We need to consider the economic and social cost (of rehabilitation as against further incarceration) to government and to society as a whole. We need to help those convicted of non-violent crime and drug offences, to create opportunities for them.
The Bureau of Justice Recidivism (BJA) reports that the weakest area of the criminal justice system is the re-entry into society. “Partners in Progress” theory involves giving grants to create housing and uses task forces to get prisoners to do the “Ready for Rent” programme which aims to teach former prisoners the basics of housekeeping. Another project that is showing promise is the “Project Accountability Certain Enforcement” (PACE) which is built on the idea that, for trivial reoffending such as a first minor drug offence or minor breach of domestic violence, parole is revoked for just 2 days (instead of 28 days). This shows parolees that there are immediate consequences for their offending but those consequences are not so severe so as to crush the progress that has been made (and also to reflect that the new offending was minor.) This helps to stop the revolving door of prison for many prisoners. Society needs to ask ‘is there a redemption point of an offender?’
For me, though, the most telling statistic was this. 85% of prisoners were men aged 18-49. Of this group, 70% had never lived with their biological father and a far greater number had unwed mothers. How such a statistic is interpreted is not really a matter for me. However, instead of looking at prisoner statistics through the lens of different racial groups perhaps there is a far greater societal problem and that is the breakdown of the family and of positive male role models for boys. Such a problem transcends race, creed and colour.
Other successes with Broken Windows
Three years ago, the Broken Windows theory was taken to Detroit which was very badly dilapidated and derelict. Detroit had in effect, developed into two cities. It had a central and vibrant centre and then it also had vast tracks of suburbs outside the central area where people lived in resilient communities but where many houses were abandoned and home invasions were out of control.
The police and District Attorney needed to figure out how to stitch that suburban area back to the urban core but they had little financial resources. After five months of planning they implemented a 12 month trial based upon the Broken Windows theory.
Firstly, they had a community ‘buy-in” whereby a press conference was held with the promise to discuss issues that were important to the community.
a) The key was to get the residents themselves to have to lead or drive it; there is a need to spread the responsibility. The key is to engage the public and identify the issues that are of concern to them.
b) The community wrote the principles. The people said they’d had enough but they saw that more arrests equalled failure to address the issues themselves. They said that they would respect the police if the police respected them.
c) They then had to recruit the prosecutor to tackle those issues and engage non-profit organisations to provide services.
d) The citizens were committed to partnering with police to identify suspicious behaviour.
e) The police were committed to disseminating the information to the residents within that community by email etc. In other words, to keep the public notified and engaged.
f) The idea was to get the criminals and their families and the police to start talking to each other.
Secondly the police increased patrols and would ‘pop in’ on known or problematic people just to say ‘hello’. They did this over 1200 times and in doing so gathered a lot of information.
Thirdly they did a lot of ‘intervention’ by performing 530 parole check-ups
a) Although only 40 people were taken into custody over these inspections it had the effect of showing their presence had increased.
b) About 12 people were identified as being the main offenders and these people were targeted.
c) The police would turn up on their doorstep and say “we are here on behalf of the community, we know what you’re up to and we’re going to be watching you… and follow closely every home invasion. BUT, here is the help that you need to address the issues. Call this person on this number and go and get an education / counselling”.
d) Detroit officials learned from the best practices of other systems- for example similar trials showed that in Philadelphia, 5% of the people are committing 60% of the crime. Once identified those people can then be targeted.
Within twelve months there was a 26% decrease in home invasions in that area (as opposed to a 7% decrease in the other areas). The success of this trial has led to a change in department policy as to how to tackle crime.
In the 3 years to 2013, Detroit has had the lowest number of murders since 1965. They are also experiencing the lowest overall crime since 1962. But the most overwhelming feature is that less people are being arrested and instead, given warnings and summonses. In return law enforcement and government are gaining more trust and support.
Juvenile Crime
Housing projects cluster a lot of criminal behaviour into the one location. In New York there are 600,000 residents in 334 housing projects which are comprised of 180,000 apartments. 96% of these residents are African American or Hispanic.
Generally in the city of New York itself, two-thirds of offences are property related and a third are offences against the person. However in the public housing areas, these ratios are flipped, with two-thirds of offences being committed against the person with only a third property related. This is because there are a lot of gangs or crews with entrenched behaviour.
In 2006, in a housing project named Brownsville, there were numerous robberies, especially “child-on-child” robberies. It was the second worst neighbourhood in the city in terms of ‘real time’ crime. Many youths were caught up in a gang and had to be a member just to survive in the housing project. They were fighting a lifetime of dysfunction and were (and are) just doing what they can to survive.
The study looked at 106 youths under 17years of age who had a prior conviction for robbery and asked ‘where do the majority of them live?’ Then law enforcement officials went to the families of these youth and told them, “this has to stop and we will help you to stop, but if you don’t (the youth) will go to jail.”
The officials then brought in the resources to look at the underlying issues and put the youth in touch with those resources to address skills, education, and mental health and to give them options and alternatives. The police were only able to do this trial with the assistance of non-profit agencies. The youths themselves didn’t even realise the seriousness or ramifications of what they were doing.
The trial was broken down into 5 parts.
a) Firstly the police did home visits. Even if initially rejected the police would return up to five times. During these visits they met the adults and showed them all the “intel” that they had on the children
b) Secondly if the police saw the youth on the street they would say hello and let it be known that the police were onto them
c) Thirdly, the police would offer support and services to the family and build a rapport with the younger children and the adults. They worked closely with the families and sometimes this would even extend to financial assistance of buying nappies or food, and even 500 turkeys for families at Thanksgiving to thank them for allowing the police into their lives and being part of the family. It showed that they really cared and many even broke down in tears at this gesture. The assistance would even extend to, for example, taking the grandmother to the doctor. The police were seen as a team as caring human beings who wanted to help and this was the breakthrough in the relationship.
d) Fourthly, they began liaising with the schools and would be notified by the school; if the child had not turned up for class the police would go to all their known hangouts and track them down. By then the families were ‘on side’.
e) Fifthly, police used ‘real time crime’ whereby an alert would be put out if a crime had occurred. The same officers with whom the rapport had been developed were waiting at the police station when the youth was brought in. It was important for these juveniles to see consequences but it was also important that they see there is hope.
By the end of the trial police were able to secure 160 jobs for various juveniles (and associates) who had been convicted of robbery.
Officials tried the same experiment in Harlem and focused on pockets of areas. They identified 658 youths who were responsible for 763 robberies. They applied the same techniques and statistics show that in 2007, robberies by juveniles was 25% of crime, in 2008 it dropped to 11%, in 2009 to 3% and in 2010 to .1%. The success of these trials requires dealing with the underlying issues.
There is a widely held belief is that a turning point in juvenile development is exposure to military training. Exposing young offenders to military training shows them that if given different opportunities they could make different choices and lead different lives. But we in authority must also listen to their stories and ask them how they came to be making the choices that they are making.
In summary reducing crimes amongst juveniles requires:-
a) establishing a relationship between police and the families
b) showing them and providing them with alternative options
c) acting swiftly when they get into trouble
d) promoting change
RICO (The Racketeer Influenced and Corrupt Organizations Act “RICO Act”)
With improvements in technology we now have the time and luxury to deal with other crimes but we need to get ahead of them. When you take on the job of addressing and solving the problems then you become responsible for the success or failure of that enterprise. It’s a big responsibility and not many people want to take it on. But we need to adopt the approach of owning the problem and wanting to do something about it.
This how the RICO legislation came about. The Racketeer Influenced and Corrupt Organizations Act (“RICO Act”) is a statute which deals with organised crime and gang prosecution. Forfeiture is a major feature of the Act as well as providing a great weapon in the fight against organised crime.
In the investigation phase, police need to look beyond the individual crime and see if there is a pattern of crime; is it organised? Then they need to prove that there is an organisation that exists. It applies to every organisation and it now also applies to gangs. RICO allows law enforcement to go after systematic crime.
It’s not enough to take the bad apples out of the barrel because the others will already be infected in some way. There is a need to ‘take out’ the entire organisation. One benefit of the legislation is the ability to join others to the organisation and make them also accountable for the acts of that organisation — the underlying theory is to incapacitate them. However, if you don’t take the money out of the equation then you haven’t finished the job. Law enforcement needs to catch the money and profits even if it were moved offshore of put into what might seem legitimate investments.
The ability to bring down gangs (with tools such as RICO and telephone intercepts) only depends on two things:
- The will or determination to do so
- The resources
RICO has proven to be successful though it may be early to just see the full nature of that success. RICO was controversial and not fully embraced when it was first enacted. However, the sky didn’t fall in and the dire predictions of “the end of civilisation as we know it” have failed to materialise.
Summary
The reasons for a drop in crime are many. There is certainly an approach that punishment will be meted out if you offend. While there may be some merit in such an approach, it will not work unless there is a change in attitude in those who would commit crime. That is where Broken Windows Theory is truly successful as it changes attitudes. Discretion is a key ingredient.
There are always going to be crimes for which condign punishment cannot be substituted. Sexual crime by adults against children is one such crime where there can only be zero tolerance. Most violent crime will also fit this bill. Incarceration is also the greatest deterrent for white collar crime. But these crimes do not account for many of the offences to come before the Courts. For the majority of crime the success in reducing the incidence is less about enacting tougher laws and more about changing attitudes and smarter implementation. As these US results show, it can be done if there is a will and there are resources.
The fundamental duty of a government is the safety of its citizens. It requires all three branches of government to work for the collective benefit. The Legislature must provide laws that will enable results to be achieved. The Executive must comply and use those laws properly and with appropriate discretion. Where problems are identified by one part of the Executive, resources need to be allocated to help solve the problem. And the judiciary must enforce those laws and be mindful of the trust the community places upon them in this regard.
Whilst the roles of Crown Prosecutors and police in Australia is somewhat different to our US counterparts, there is scope to be proactive rather than simply reacting to whatever is in front of us. Reducing crime is the responsibility of all of us but instead of looking at this issue only from our “turf”, all facets of the community have to look at this issue holistically.
In effect, we are all part of the solution.
Sal Vasta
