Is Zero-Tolerance Policing Worth Chokehold Deaths?

Many in the U.S. were horrified at the death of Eric Garner, a 300-plus pound, asthmatic, diabetic African-American man with sleep apnea and six children last summer. Garner was arrested for selling loose cigarettes on a Staten Island street and when he resisted being handcuffed, an arresting officer applied a chokehold. Though the maneuver is theoretically forbidden in the police manual of procedure, it brought Garner to the pavement, whereupon other police piled in, compressing his chest. A bystander filmed the whole episode on a cell phone and Garner can be heard crying “I can’t breathe” eleven times. He died shortly thereafter at Richmond University Medical Center.

The Chief Medical Examiner’s Office in New York City, in a signal act of courage because the office must deal with the police constantly, declared the death a “homicide.” Garner, 43, was killed by “the compression of his chest and prone positioning during physical restraint by police,” said medical examiner spokeswoman Julie Bolcer.

Then, earlier this month, a grand jury decided to not indict the police officer who killed Garner, igniting tempers and linking Garner’s death to that of Michael Brown’s. Since the two deaths and grand jury acquittals, the issues of abusive police tactics and the use of military style weapons by police forces have been forced on the national stage.

When the chockhold death occurred, Mayor De Blasio postponed a vacation to conduct some damage control over the disturbing incident. Meanwhile, Patrick Lynch, the president of the Patrolman’s Benevolent Association, dismissed the medical examiner’s report as “political” and commented on the video that, “sometimes force is necessary, but it’s never pretty to watch.”

Heavy policing for minor crimes as selling cigarettes began in the late 1980s after the Central Park jogger case. While New Yorkers, like any city dwellers, always had a fear of crime, those fears reached a crucible in 1989 when a young woman stockbroker jogging in Central Park was assaulted, raped and left for dead. The woman, later identified as Trisha Meili, had been a vice president at the investment banking firm Salomon Brothers. Neurosurgeons at Metropolitan Hospital were able to restore her cognitive functions after the attack but her acuity with the financial markets and ability to be a stockbroker were forever lost.

At about the same time that Meili was attacked, some 30 teenage ruffians were tearing through the park on a night of “wilding”–beating joggers and bicyclists, smashing car windows along Central Park West, and in general wreaking havoc on anyone with the misfortune to cross their path. “Wilding” was a term to become a new part of the American lexicon.

Five of the wilders were seized by the police and, not surprisingly in light of the climate of fear, charged with the attack on Trisha Meili. Years later, after the five had served full prison terms as adults, it would turn out that they were framed by the police and the district attorney’s office and a $41 million settlement is now underway.

Even with the wilders behind bars, fear of violent crime ate away at New Yorkers who demanded more Draconian policing measures. Such measures arrived in 1992 with New York’s new mayor David Dinkins, a gentle, soft-spoken African-American man and ex-Marine and his no-nonsense police commissioner, Raymond Kelly. Dinkins’ and Kelly’s solution: breed respect for the law by enforcing all the laws on the books, no matter how seemingly trivial, such as smoking marijuana in public, petty drug dealing or even jumping a subway turnstile. “Squeegee men” were even targeted.

Such letter-of-the-law police work is also called “zero-tolerance” policing and is based on the “broken windows” theory of crime which postulates that crime flourishes when apathy for enforcement of minor laws is perceived. For example, when an abandoned automobile with no license plates and its hood up was left in a Bronx neighborhood, its radiator and battery were taken in a short period of time and windows smashed and upholstery ripped, reported Philip Zimbardo, a Stanford psychologist, in 1969.

Dinkins and Kelly rarely get credit– or blame–for turning New York City into a laboratory for heavy-handed policing based on the broken windows theory because crime did not begin to decline before the duo was ousted by former United States Attorney Rudolph Giuliani and his own “Top Cop,” William Bratton. Within two years Giuliani and Bratton were competing for the title of New York City’s violent crime reducer, though the decline in crime likely began under the Dinkins administration. Mayor Giuliani won the title over Police Commissioner Bratton and went on to build a reputation as the man who cleaned up New York City. After his stint as mayor, Giuliani was enlisted by Mexico City in 2003 to enact similar reductions in crime, especially in tourist zones. The venture was not successful. Meanwhile, the current mayor of New York City, Bill de Blasio, re-inducted William Bratton as police commissioner earlier this year.

Crime did decline under Giuliani and Bratton in the 1990s but was there really a cause-and-effect relationship between the decrement and “zero-tolerance” policing? To get some answers we spoke with David Harris, Professor of Law at the University of Pittsburgh, who has studied zero-tolerance policing in depth and is considered an expert.

Surprisingly, Professor Harris told us the progressive decline in violent crime, which continues to this day, is an inexplicable nationwide trend that is seen equally in cities that practice zero-tolerance and those that do not. Professor Harris deemed zero-tolerance policing “harsh” and “unyielding” and devoid of any deterrent effect. Indeed, Professor Harris finds it counterproductive because it breeds fear and hatred of the police, crowds jails, and deflects police manpower from pursuing serious crime. Professor Harris describes the apparent success of zero-tolerance as an artifact of the nationwide decline in all crimes. Zero-tolerance takes on a life of its own and leads to episodes like the Garner homicide or the ignominious epidemic of “stop and frisk” encounters, Professor Harris told us.

Though hailed as New York City’s new “liberal” mayor, Bill de Blasio seems a fan of zero-tolerance policing, underscored by his bringing back the controversial William Bratton as police commissioner. While the fate of Eric Garner might be the first “success” of their commitment to zero-tolerance, the murders of officers Wenjian Liu and Rafael Ramos suggest that police/citizen relations may be the defining issue of Bill de Blasio’s administration.

We also spoke with Chauniqua Young, a staff attorney with the Center for Constitutional Rights. Ms. Young agreed that zero-tolerance leads to abuses like stop and frisk. Young was a member of the CCR legal team that won at least a partial victory in Federal District Court, where Judge Shira Scheindlin set limits on stop and frisk by New York City police. Law enforcement officers may still stop someone and frisk him if they have a “reasonable suspicion” that the person is armed. When running for mayor, de Blasio made improper stop and frisk practices a pillar of his campaign and promised to drop an appeal of Scheindlin’s ruling filed by the Bloomberg administration.

Chauniqua Young has harsh words for zero-tolerance and stop and frisk laws in which volumes of people, often people of color, are targeted and says it is a violation of the Fourteenth Amendment. She believes that police are not properly disciplined to use their authority with restraint and she emphasized the indignity and racist nature of such police actions, an issue highlighted by August’s unrest in Ferguson, MO. Like Professor Harris, Young believes that zero-tolerance policing alienates innocent people from the police.

Next we spoke with Terry Kupers, a forensic psychiatrist on the faculty of the Wright Institute in Berkeley who has spoken out against prison abuses including solitary confinement. “Being busted [by law enforcement officers] can be a severe trauma with long-lasting consequences,” Dr. Kupers told us. In addition to racial inequalities, zero-tolerance puts homeless people and people suffering from a mental illness in jeopardy of trauma when they are arrested and/or incarcerated, he said.

While an arrest is a negative reinforcement which is capable of changing behavior, most psychologists regard positive reinforcement [reward] as a better way to change behavior than punishment. And, says Dr. Kupers, the negative reinforcement of arrest and incarceration is dwarfed by the harmful social effect of putting more people in jail or prisons. On an individual basis, deleterious conditions in prison and jail such as crowding, lack of medical and mental health care and solitary detention simply increase the likelihood of offenders using drugs, committing more crimes and being re-arrested when they are released, warns Dr. Kupers.

Still, zero-tolerance measures are in wide use. In New York City alone, an astonishing 700,000 people were stopped and frisked in 2011. What kind of effect does such wide net policing have on lowering crime we asked Professor Harris. “Marginal,” he told us.

Clearly, if  violent crime is dropping in the U.S. anyway and zero-tolerance policing  causes civil liberty abuses like the death of Eric Garner, the harsh mode of law enforcement needs a closer look.

Emails and phone messages to former Mayor Dinkins, Commissioner Bratton and Mayor de Blasio for comments on this article were not acknowledged. However, an assistant to David Dinkins, who now a professor at Columbia University, told us in an email that the former mayor has made it a policy to refrain from criticizing other public figures past and present.

Robert Wilbur is a New York City-based writer who writes about forensic psychiatry, clinical psychopharmacology, animal rights and other topics.

Martha Rosenberg is an investigative reporter. She is author of the Random House-distributed Born With A Junk Food Deficiency: How Flaks, Quacks and Hacks Pimp The Public Health (Prometheus) and a frequent contributer to CounterPunch.