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    Kelling, G & Coles, C M - Fixing Broken Windows

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    ao fe] * NG 4 B RO K EN WINDOWS Restoring Order and Reducing Crime in Our Communities GEORGE L.KELLING CATHERINE M.COLES Foreword by James Q. Wilson ‘A Touchstone Book Uns By SIMON & ScitusTER AR eto 10 ‘This bok s dedicated 0 out family, lose ond extended epic © 19% Come Ketng and etn Can Faced pei 958 jane Woe Aigo mere ind he eaten ‘Ths eke gaps Sy Mi Ke ok TOUCHSTONE a pho enemas Desay Cale Ube of Compe Cua Pete Dts ate One : \noteonmoni Org Flng Cee Ce adie pei oct ne {nC Te Hi Savers some I BS parone tow | ‘The police at ll ine should muna a elaonship with the pubic that ve realy tthe itor ration thatthe pice are he publi nd thatthe public ae the pl; he police ae the ony members ofthe public who ate ‘aldo ive ullie tension to dates which are incumbent on every lizen inte interes of community wee. Se Robert Fel Founder London Metropolitan Pole, 1829 CONTENTS Lief Fewes a Feewor by Jemes Wien sib Introduction 1 Disrdes “Broken Windows,” and SeowsCiime 1 1. The Growth of Dre 38 ‘The Fe of Pas Policing Seaeges “Taking Back the Subway: New York City’s Qualty-of Life Progam 108 Community-Based Crime Prevention 137 “Taking Back the Streets: Restoring Order in Baltimore, San Francisco, and Seatle 194 Fixing Broken Windows 236 Pawcrge 259 Nae 261 Beraphy 291 Inder 303, Acouleenens 317 Fig 4.1 Figwe 42 Figure 43 Figne 44 Fine $5 Fina 4.6 Fine 4.7 Fiat 7.1 LIST OF FIGURES jection fom the New York City Subs, an. 1987-Juy 1994 Ames, New Vrk City Subway Jan 1987 July 1994 (Chien Compara Abou Pe, New York City Subway Jan. 1987 July 1994 [New Vk City Subway Felonies and Robberies, 1988-1994 [NewYork Cy Murder Rates, 1988-1994 [New York Cy Robberies aed saul, 1988-1994 [New Vink City Propery Crimes, 1988-1994 The "Criminal use Syste" Versus Communi Based Prevention 13 1B BB 132 153 153 1s 40 FOREWORD James Q. Wilson ‘THE COMPETING DEMANDS OF LIBERTY AND COMMUNITY CONSTI. tute a fundamental cleavage that divides contemporary political plulosophers and has produced among the pubic at large the American ‘culture wat The defenders of iberty envisage @ world of autonomous individuals who freely choose cei destinies and whose liberties are e- sential to personal development and socal democracy. The advocates of community rejoin that no one i rly autonomous, that berry ean ‘only exist in an envionment of eatonable onde, and that personal de- ‘velopment requis familial and neighborhood support. ‘This cleavage not coterminous with that between liberal and con- servatve, The supporters of iberty nclade Ubertarians who ae market. corented economic conservatives, the defenders of community include liberals who think that marker forces are often destructive of communal lif, John Rawls and Robere Nock, chough quite diferent in their ai tudes tomard government, are alike in basing thes philosophies on fieely choosing individual. Michael Sandel and Alasdair Maclnryte, though perhaps in disagreement on many matters of public policy are alike in viewing man as social animal whose fe derives meaning fom Itscivie contest. (On countless issues—drug legalization, school prayer, reproductive rich, planecosing laws, parental leave policy, crime-contol strate iv Foewod siete competing claims of liberty and community are often heard In this hook, George Kelling al Catherine Coles explore this sue in pethaps its most common and vivid incarmation—how and to what ex- tent should public spaces be protected? Everyday in most bg cities and many smal ones, we experience the problem, Homeless people asleep on agate; beggars soleting funds by ‘the bus stop; gafti onthe bridge abutment; teenagers hanging ou in fontof the deli loud manic coming from an open window How should conduct in public spaces be egulate, and by whom? Far the past thee decades o so, the deft in pubic plicy has been toward maximizing individual lbery and away fom enforcing comms ral contol. Public drunkenness has been decriminaize, the mentally A have been deinstiutionalied, public solicitations have acquired broader cortitutonal protection. Many of these changes were che r- sul, not of public debaeor legislative eft, but of court decons that have endowed individuals with more, or mor readily enforced, rights Courts ae institutions whose special competence les inthe discern ‘ment and aplication of righ. This means tht to the exten courts decide matters, the det of policy wil tend to be toward liberty and away from communi. The cout wil ypcally hear a ease brought by {con behalf of an mdvdual bea, sleeper, oF solicitor Suc anid vidual rarely constitutes much of threat to anyone, and so the claims ‘of communal order often seem, in the particular case, tobe suspect or ‘overdrawn. Bat the effects on a community of mary individuals taking advan tage ofthe sights granted roan individual (rote, 8 the courses an abstract, depersonalzed individual are often qualitatively diferent fiom the eee of ingle perion. A public pace—a bus stop, a maker scare, a subway entance—is more than the sum ofits human parts it ‘a complex patter of interactions tha an become dramatically more ‘threatening asthe scale and frequency of those interactions increase. ‘As the numberof unconventional indvidalsncretsesarihmescally, ‘the numberof woersome behavior increases geometrically, ‘And so the publi complains—of agressive panhandlers, disheveled vagrants, and rude teenagers. The police have no easy response. To many of them, desling with these minor disorder snot wh they be came law-enforcement officers: ling panhandlers to move oni fa om Fewwml 1 ry from fghring crime, Toll f them, any intervention brings the sk of adverse publciny hore Iw ts, and politcal debates in which, their experience els them, rights are trumps. For nearly every kind of ‘unconventional person there seems to be an advocacy group. Betts, ‘the poice tell themselves, to pul back, do nothing. Asa result the po- lice fen fil o do even the minimal dings that the cours have al- lowed. The public gets more wpct, and the ise affects the outcome of| a coumel or mayoral ce For many years, George Kelling has sui this problem, advised public officials on how to cope with t, and evaluated thei forts to do to. Inthe proces, he has become this county's preeminent authority con the problem of controling disorderly conduct in pubic places. Until row, there has been no comprehensive teatment of what he has leamed; now; her itis “The title —Faing Broken Windows—is an allusion to an essay Kelling and 1 published in The Adlanic Monthy in March 1982. We used the image of broken windows ro explain how neighborhoods might decay into duorder and even crime f noone attends fithfuly to thelr maintenance. Ifa factory or ofice window is broken, passersby observing it wil conclude that no one cates or noone isin charge In ‘ime, afer wll begin throwing rocks to break more windows, Soon all the windows willbe broken, and now passersby wil think thar, not only is no one in charge of the building, no one sin charge ofthe street on which faces. Only the young, the criminal, or the foolhardy have any business on an unprotected avenue, and so more and more ‘etizens wil abandon the street to those they assume prow! i. Smal, disorders lead to larger and larger ones, and perhaps even to crime ‘A rightsorentd legal tradition does nt easy deal with this probs lem. The judge finds it hard to eeve that one broken window is al ‘ha important or that the police should be empowered ro exert thei authority on people who mig break more windows. The judge sees a snapshot ofthe street atone moment; the public, by contrast, see 3 ‘motion picture ofthe steet slowly inexorably decaying Kelling has sen this process unfold and understands the competing values atstake. Through his research onthe histor of policing in Amer- tea and his work advising publc agencies, notably the New Yok City “ranst Author, he ha learned how one can deal wih the peoblem of si Fervent ‘order in public spaces at minimal cost in individual ery. Coles as stadied the law on this mates, and sets forth with admirable clariy its Ihopelesly unclear condition. ‘The resul is & book that ought to be read by every police chet ‘mayor community activist and concerned citizen. I provides practical ‘guidance on how to cope with a problem that many of simply debate, {in increasingly seident tones, as we express our outrage over the ex- ceses of ether radical individualism or conformist communal, ‘We can reclaim our pubic spaces without sacrificing out estential liberties, but to do so many groups—the courts, the police, and many public and private agencies—must change how they think about chese ‘mater. Kelling and Cole tll hem howe INTRODUCTION political leaders propose dramatic solutions to che “erime problem.” ‘They focus om capital punishment, "thee strikes youre ou” incace tion policies, construction of more prisons, tighter gun control, and increasing the numberof police on the tees Yet the curren crime problem i being debated in fr richer and. ‘mote complex terms locally. Certainly, local poicians and media voice _eat concern about some ofthe same isuet: violence, serous cre, and the prevalence of weapons on che streets, Citizen, however, are demanding thc order be testored co streets, parks, and other public spaces. The voices and demands ate stating to change how local politcal leaders especialy, but many police and criminal justice profes sionals aswell, are redefining and addressing our cites’ crime problem, Recently, Kelling spent an evening in a tough inner-city minority neighborhood in a large Eastern city, walking with neighborhood resi- dents, a community organizeineighbothood lawyes and a foot patrol officer The residents pointed with pride to abandoned rowhouses boarded up a resul of lgal action they had taken, cleaned up vacant lots, one of which had been converted ro a neighborhood garden, snd streets chat were now empty of drug dels Yetat one major incersec- ton they encountered what could only be described an open-air 2 Fang Broken Windows drag market. At fist, the group watched from a distance: perhaps fy people were on the sect, some hailing cas and negotiating deals, oth cers watching for police. A few just watched what was going oa. As we approached, the watchers spoted he oficer au the alert went out “Joanna, Joanna’—the local argoe for police. Dealing fll off and then oped at desleselowly moved in various directions just fr enough to observe the group but close enough to return later for business as ual. Many youths, especially che youngest, jst stood and observed, ‘What was most dismaying about that comer that evening wa the pres: ‘ence of children no older than eleven and eelve: Whar they saw was, not eual o abusive cops, bur governmental authority asa bad joke. Ie was clear who contolled chat section of public space—not censor ‘government, but drug dealers. Similar scenarios are played out om city ‘comers throughout the United States, ‘Weave no doube that many ofthe deales operating chat night had previous records and probably were ether on probation or parce ot aveitng hearings on other charges. Yet where were the probation off ets, parole officers, prosecutors! Why were they not out there as part ofthe neghbochoed team to regain and keep conta ofthe sees, sending a stron message that resklnts and government erin jus tice agents would not rolerate dealers taking over streets and eros: ing neighborhoods! Why was the police officer, « wllntended and concerned young person who expresed indignation at condicons there, asgned only regularly and onan overtime basis to this neigh- bothood rather than on a permanent fixed assignment? OF course, we know the oficial answers. Probation and parle agents are ove helmed by their caseloads. Prosecutors must concentrate on serous cases and their caselon. Police are overwhelne by 911 calls. And it i more ecient foal ofthese professionals to operate out of centralized facilities. But lurking behind these rationales are profesional and bureaucratic models of performance and personal motivations that Ihave litle todo with neighborhood safer. Happily, many police departments and afew probation, pale, and prosecutorial agencies ae starting o verouly question their asimp- tions and operating strategies and shift to communi, problem-solving approaches. At the same time, while ctsens are demanding order and some police and criminal justice agencies are responding to them, civil Imrocton 3 Uibertarians civil liberty unions, and advocates forthe homeless are ‘pushing in exactly the opposite dtecion. The vocifrousnes of this ‘controversy cannot be exaggerated, Local papers un daily news stories, ‘editorials, op-ed pleces, and lees detailing both public concern and intense controversy about neighborhood dsoedet In San Francitca, one of Amerc!s most ecaly and plically ib- eral cites, for example the las two mayoral elections have turned on ‘aoues having to do with homelessness and diurder, During the fate 1980s, Mayor Arthur Agnos refused to move encampment of the homeless out of public parks, especially the Civic Center. Conse ‘gently the Cvie Center was dubled "Camp Anos” and became a major issue inthe 1991 mayoral election. Frank Jordan, a eied police fcr, was elected mayor on the basis of his pledges to restore order Four year late, during the next campaign, Mayor Jordan’ program to restore order, Operation Matix, dominated the polical debate. His succesor, Wile Bow, ended Operation Matrix but easured citizens ‘that he would stl enforce che las against persons who camped, drank, of committed minor crimes in parks and pullic places. San Francia’ preoecuption with disoeder was nor unusual: during the 1993 mayoral race in New York City both candates, David Dinkins ‘and Rudolph Giuliani, ran against squeegeemen—youths who extort, money fiom car drivers by washing car windows. Such stories voice both strong indignation onthe par of many local zens, merchants, and urban dwellers about the isu, cheats, and incites they face day, and an increasingly aiculse a poltally powerful demand cht something be done about rampant disorder. But they alk reflect the equally forceful belief of civil libertarians and homeless advocates that intolerance and injustice are cloaked within the demand for order ‘Why, with violence rampant in many ares of cites, are neighbor- hood residents peecccupied with isues such as encampments, squeegteing, panhandling, prostitution, and other forms of disorder. ‘Are they creating scapegoats ofthe poo, minorities ower classes, and youths? Helen Hersh of the American Civil Liberties Union argues “ln an effort to deal wth the enormous increase n poverty a bome- lessness in cities across the country during the past decade, numet us municipalities are enforcing with renewed vigor, long-dormant 4 Fang Broken Windus ‘ordinances pohititing the destitute from asking members ofthe publ formoney." Are we egresing tothe ide of "dangerous clases"? No. Such charges merely obfuscate what ae essentially legitimate lains—caricaturing them as racism and economic injustices Despite assertions by many Ubertarians, attempts to restore order do not pit ich againet poor oF black against white. The demand for oxder| permeates all social classes and ethnic groups. When patrons of New York's subways demanded order, it was not bankers and stockbrokers who voiced the greatest concern—the, after all, had other options Rather it was working persons ofall aces who reed upon pubic ans portation and craved decent and civil meas of travel Second those demanding order ae not, forthe most part, moral lmperialiss. Most petsans opposed to prostitution in San Francisco's “Tenderloin area, fr example, ate not prudish viglantes concemed shout commercial ex asa matter of principle. They spl abject 10 the promiscuous behavior of prostitutes and jon, who publicly com> sit sex acts in parked cars, discard prophylactic and needles on side- walls, doostoops, and in public parks, unmindlul of che play of churn, and who depart public request for some eicumspection in their behavior Finally, advocates forthe restoration ofordr are not proposing sme form of tyranny ofthe majority. Most are well avate ofthe excesses of the pat and the dangers inherent in balancing individual ights against Ironder community claims. We speak here of behavior that wilates widely accepted standards and norms of behaviog, and abou which a ‘road consensus exists, in pte of racial ethnic, and clas differences. “This pute snot st polical—ii eal andi being fought in the cours. As Kent Scheidegger ofthe Criminal Justice Legal Foundation comely prophesied: "When ity decides odo something abou ble corde the fst question sil we get sued?” The answer, inevitably i yes And given the special rl ofthe courts in the United States as the final arbiter of much of publi poli citizens, the medi, nd pubic pro feslonale—espectlly police and criminal Justice profesdonals—must understand the shape and logic ofthe lea thinking that wll determine the important public pole sues about ere an its management Yet, asa tue the Reneral public knows litle about these suits othe legal and sil lic that resolves them. Take recent New York City Iroc 5 ‘example. To young persons, Jennifer Loper and Willam Kaye, moved fiom ther parents’ suburban homes onto New York Cis streets in 1990. They partially supported themselves by being inthe East Vil lage. Occasionally, police ordered them to move on der the city's ansipanhandlng ordinance. Neither Loper nor Kaye suggested that police ha said or done anything more threatening than ordering them to move on. Yet, in 1992, represented by lawyers who had eater unsuccessfully challenged the New York Cay subway's ban on panhan- ling, Loper and Kaye sued the city alleging that their fre speech sights had been violated and that the ciy'san panhandling ordinance ‘was unconstitutional. At che ime, mas police even police administra tors, were unaware of the existence ofthe anc-panhandling lw, let Alone the sult. Federal Judge Robert We Sweet agreed with Loper and Kaye, elevating thei Begging toa political statement about povery, ‘inequitable ditbuton of wealth, andlack of adequate housing and as such, deserving of Fase Amendment protection. Citizens certainly are aware of panhandling: few realize, however, tha the court has esen- tially provided i with Fist Amendment protection, Yet a citizens experience the crime problem it includes panhan- ‘issioned by the city of public atitudes and experiences concerning aggressive begging in San Francisco reveled chat 90 percent of res: dents had been approached by a beggar in a public place at last once ‘over the previous year, and that of those approached, 39 percent had ‘been concerned for their physical safety during ar leas some of the ‘encounters, while 33 percent had given money to bears, sometimes ‘out of perceived pressure. Survey results alo indicated that over a third ofall San Franciscans had avoided certain locations, stores, restau rants, or places generally because of the presence of beggars, and responses were similar from residents of the lager Bay area, who teposted that chy refained fom visting the iy aleogether® Citiens ‘eventually moved beyond ther fear and withdrawal o demand that police, prosecutors, and other government ofcials take action to restore order to city street. Police and prosecutors responded, giving aguressive begging and sret encampment (along with street prostcw- tin, which was also a major concer of resident in specific neighbor. Too) high prio. At the same time, however, che city’s efforts to react positively to citizen demands were attacked i lal suit chal lenging its eliance on a California statute that banned "accosting for the purpose of beguing” San Franclsco snot unique. Right now in che most troubled neigh- borhoods of New Haven (Connecticut), Chicago, New York City, Ini snapolis and Milwaukee, fwe ak residents, merchants and regular” shout the major problems in their neighborhoods, almost invariably they describe abandoned cars, raf, public drunkenness, street pros tution, youth gangs taking over parks, and other such disorderly behaviors. People act on these fears—many choose to leave the city Commenting in 1994 on the responses of New York City’s residents to Seer Discrder “Broken Windows” and Series Crime 13 such “minor crimes, former deputy poice commissioner Jeremy Tavis (who later tha year was appoinced t head the National Insitute of Justice under the Clinton administaton) remarked in an interview for Nesey: “There some facinating irvey dats done bythe Commonwealth Fund ‘Alsat 17 percent ofthe people] who lef the cy mi tha ithe Police Department had ken minor crimes more serous it would have had ‘aor impact on cei decisn; 59 percent who ef di ow dmpeove the quai of thet Me. Thre five people wha sil ve in New York City ‘ay det, pai, noe, panhandlers, oreles people, and beggars have reduced the quay of fe fo them an thei fies This the ental ise for he ut of New Yrk Cig! [Rather than leaving ces, other residents purchase weapons and dogs, some abandon public files such as puble transportation, and yet others lock themselves in cel residences and leave only wien inthe most dire need. Many have joined with neighbors to demand that police, prosecutors, and courts respond to their needs. In Seattle, elderly residents of a nongroft housing asociaton, along with the Seatle Indian Center, recerly fed a rend ofthe court brief on behalf ofthe city to support estitve “atree cv laws,” including anon ance making it legal to stor le down on public sidewalks in the downtown and neighborhood commercial area from 7 AM, t09 R$ ‘These low-income residents, many of whom had previously been homeless, woried about being able to walk safely to a comer store and fale increasingly vulnerable to criminal activity as their neighborhood was avoided by other residents who were ferfl of entering the ae. Joining representatives ofthe Indian Center, a treatment center for Fhomeless chronic publi inebite, they argued that sering standards forbehavior in the immediate area was not an assault on the dignity of the homeles, especially when the standards were necessary to helping substance abusers move beyond patterns of self-destructive behavion “These ae nt isolated instances. In ites aros the ounry, mayors like Jane Bye of Chicago, George Laier of Se Paul (Minnesota), and Kevin White and Raymond Fin of Boson responded ely to cit inen calls for improving neighborhoods and communities trough “quality oie” programs. More recent; mayors Stephen Goldsmith of 4 amg Broken Windows Indianapolis, Bret Schundler of Eiabeth (New Jersey), Frank Jordan ‘of San Francisco, and Racoiph Giuliani in New York have emerged 2s ‘outopoken advocates fr restoring ores as well as fr atacking serous crime, Quality of Me and disorder continue to be among the most urgent iss local politicians addtess, regardless of party affiliation. Yet the nacional debate on crime focuses exclusively on serious, index crimes and related issues: capital punishment, “tree strikes you'e ‘out the ae for move prs, gu mtr andthe aumber of police on the stret. The revuking dsconsiuity berween the “rime problen* a conceived by national politicians and policy makers, and the seu ition of ckizens who experience and vew ie more broadly as acontin- ‘uum encompassing disorder aswell serious crime is troubling in wo regards, Fst ts unlkely thar policies emanating from che national level, and funded by federal dela, wil produce programs that satis citizens. Second, such policies will probably not have a substantial ‘impact on crime, however itis defined. Tes time for a sex change in our thinking about cine. Specifically if we are fo understand the crime prblem ss neighborhood residents merchants, and other citsens experience, we must go beyond narrow definitions of the problem that have characterized political, profes sional, and policy thinking, More important if we are ro address the ‘rim problem in ways tha affect the lives of tens i thelr communi ties, we must do so with a strategy and set of acs that respond to it~ Jaen priores. Both of these require chat we address the problem of rowing disorder in our cites DISORDER DEFINED ‘Whats disorder nits bodes socal sense, disorder isinciviity, Boor teh and threatening behavior that distrts le, especialy urban lie Urban life is characterised bythe presence of many strangers, and in such ctcumstances citzens need minimum levels of order. Whether ‘wing urban areas to reside, sho, deliver services, work, enjoy eulurl ‘opportune, ot hve space for their cilten to play, citens neque what urbanologst Jane Jacobs has called the “small change” of urban lie: “Ithe} builvin equipment allowing strangers to dwell in. peace together on civized but esentially digi and reserved term.” ii me Dror “Brken Windows ond Serio Crime 15 What is cis “bili equipment”? Ics the myriad of mundane set ‘observances and stualsthrough which people communicate thet ein- biley and predicate: limiting eye contce, respecting personal space, modulating voices, walking to one side of the street—the si virtually endless. Few of these practices are colli; moat are imprinced in ciens a they mature, In sll and homogenous neighborhoods and communities, where people’ lives are inerowined in many ways, the “small change” of| scree eis leastnecessany Instead, meshed obligations and fomllaity are the primary guarantor of cv. Even the most seriously disturbed or deranged individuals are known personally to thos in the commu- nity: everyone knows how far they will go, so their behavior spre licable, even if deviant. In plrlisie cosmopolitan areas where Interaction with tanger fequent and commonplace, we cannot be advised about those we meet by personal knowledge, history, © per haps even reputation. Instead, we take our cues fom actives ‘observed on the treet and shape out public behavior accordingly fe axe the strangers, Most citizens have litle dificuty balancing cv, which implies selFimposed restraint and obligation, with feedom. Yer, a few are cither unable or unwilling to accept any limitations upon their own behavios At the extreme ae predatory criminals who murdey, assault, rape, ob, and steal. Society almost uniformly condemns such behavior im addition ro social norms and values thar operate, we have also deve ‘oped claborae insuions to prevent andlor punish st—police, prose: ‘ators, cours, and even prisons. Less extreme is disorderly behavior that, while not as serious asthe crimes noted above, nonetheless can threaten social order by creating feat and criminogenic conditions. By isotder we reer specifically to agressive panhandling, street post ton, drunkenness and pubic drinking, menacing behavior, hase ‘ment, obstrection of streets and public spaces, vandalism and graft, public urination and defecation, unlicensed vending and peddling unsolicited window washing of cats ('squeegeeing"), and other such acts, While many ofthese behaviors are designated as criminal, they are usually lasifed as misdemeanors or petty offenses under tate laws and ety oedinances, mos often punishable only by fines oF commniy 16. Ping Broken Windows Virwully everyone agrees that committing a felony i wrong and deserving of apprehension and punishment, even though we do not ‘ew all felonies as equally serious, consequential, or worthy of police action, For example, spousal abuse and apein marriage were long con- seted private matters, and police and prosecutorial interventions vere limited and cautious at Rest Now of courte, values have changed tnd spousal abuse and rape are considered ona par with other forms of sggravated esau ad rape—pethaps even moe serious given thet repetitive and exalating nature. Nonetheless, fr the most part in vir tually all societies murder, rape, asst, and theft of one kind or nother are outlawed and deemed worthy of trong condemnation. Disorety behaviors ate moe ambiguous and less straightforward “Many more of ws than would pethaps like to admic doing so have uri nated in publ, been drunk, asked someone fr money when in a jam or money to make a call to get help or fr bus fre, bought goods or service fromllpl vendors, used prostitutes, obstructed ao trafic ot pedestrians on a sidewalk, committed minor acts of vandalism, ct fied our other such minor offenses constituting “disorderly behavior” ‘Why should citizens be so offended by and afraid of acts that many of shave committed atone ine or another? Why should some persons sity of such behaviors be wamed andlor areted and not others? ‘Why ist that these behaviors, seemingly far les serious than felonies {in thei potential to injure or harm others shouldbe restricted of regu lated a al? ‘The answer lies in che immediace fear that such disorderly behavior ‘engender inthe lca community when teaches 2 critical mas, and in the potential fr more serous crime, wrbun decline, and decay that ray ultiately fallow on the heels of unconstrained disorder Nether the questions, nor the answer, are academic: disorder, feat, eime, and turban decay seriously thveaten urhan life and commerce in American cites today. DISORDER AND FEAR: THE “BROKEN WINDOWS" THEORY Dring the mid-1970s, under the auspices ofthe Police Foundation, a think tank and research roup, Kelling conducted the Newark (New Jersey) Foot Patrol Experiment While popular with many citizens and Daede“Bren Windows and Serine Crime 17 policians a the tne, for patrol was viewed by most police executives asa waste of valuable resources that could be beter used foe “eal” policing thats, keeping officers on paral in cars During the 1960s, for ‘example, a sty ofthe Boston Police Department carried out by the Tnverational Astocaton of Chel of Police had ridiculed the depare’ ment by aseting that the “criminal element «x gatful ro police agencies that persis in dhe anciquted procedure of assigning a large portion of ther members to foe patrol." Because offer patrols popu- lary with citizens, however he State of New Jersey funded fot patrol 2 par of its Safe and Clean Neighboehoods Program. Begrudengly ity police ccepred che money, largely forthe ational obs and fund- ing ic provided. Nevertheless, foot patol was conducted at an add-on program, an appendage to other police services, and only minimally integrated into overall police suatey. [As patof his esearch, Kling spent considerable time walking with [Newark police oficers on foot pato. Relatively ll taining or gui ance was given to foot patrol officer, who were petty ch let. heir ‘own devices on beats; Yer inthe myriad vary of neighborhoods of cet patrolled, Kelling found that they acted in a suprisingly uniform fashion, Immersing themselves i the lives of thee neighborhoods, of cers were wel-known, often by name, area regulas—resdents, mer chants, and street peopl alle—and knew many ofthese individuals by same as well. Foot patol officers kept abreast of local problems, assumed special respons for pacar locations or persone, devel: ‘oped regular sources of information (apartment managers, merchants, stret persons), became regulars a local restaurant, checked "hazan such a hors and in one cse an inner-city dr tore that conspicuously splayed and sold a wide asiortment of knives and straightedge anos, and in other ways eame to know an be known on their beats Final in collaboration with and on behalf of citizens, officers established "rules of the steet” that were commonly known and widely accepted by “respectable people,” a5 wll as “steer people.” These informal rues covered such behaviors at panhandling, hing down or congregating on sidewalks and in parks, drinking public areas, and drug use. They did ‘not merely prohbi speci ets, such a soliciting for prostitution, but fen defined the conditions and manner under which activites could be cared out: for example, panhandling was permissible, but nt from 18. Fume Broken Woulows people standing sil or waiting a» bus stop: siting cn the stoops of stores was accepted, but nt hing downs disk alcohol public could be done only ifthe bot was in «brown paper bag, and only off main thoroughfres. Not suprisingly, such rules varied by neighborhood, Most New Jentey police chiefs were dismayed when they leamed form program evaluators what (anonymous) officers, who were sup posed to be “ighring crime,” were actully doing while on fot patrol For example, aftr being called a second tine daring the same evening to end bras in the same ba, one foot patel office had ad enough: although "bar time" was sore houts ay, he ordered the bar cloud for ‘the night, The bartender gambled closed up, and opened the next day for business as usual, When this incident was recounted to the chief of the department in which it occurted—diagised, to protect the conf > ‘As we noted above, opponents of lglationdiected at contlling sods often cast their arguments in terms ofthe need to protect the rights of the ocr” or “homeless.” Traditional ass for controling di- ‘order in society did rely upon restietons placed explicitly upon the poor and vagrants, Yer our courts have appropriately taken us far [beyond the old vagrancy laws that permitted the poor o minorities to receive discriminatory treatment. Today, both legltion and legal doc tine concerned with rercting disorderly behavior in public reflect this evolution. The question is, however, whether the cours have gone too fi ‘rom the time of Union the states sought co regulate both vagrancy sd begging and ever movement by the poor into their exons. The [Articles of Confederation prevented paupers fiom exercising the right to enter and lave, ely, any sate, and excluded them fom enjoying those privileges and immunities reserved to all ther elzen. Local authorities could oust newly arsved poo, emoving them to thei ast place of residence In 1791, when the Bil of Rights was tified, eight of the fourteen states then in the Union speeically prohibited beaging by statue; faye other states and the District of Columbia followed by 1812. In many locations only those who had resided fr lengthy pes- ‘ods ina particular location were eligbl ro receive public assistance» All such laws were hei to he Brith tradition of egulating the “dan- erous clases" and the Unite States Supreme Cour fully supported hem: in Mayor of New York. Min (1837), Justice Barbour wrote that ‘the State of New York had acted wisely i excluding pauper ariving by ship fo ic was “necesary for a state to provide precautionary measures ‘zsinst the moral pestlence of pauper, vagabonds, and posibly con ‘its a it to guard agains the physical pestilence... ftom unsound and infectious stiles" With the Tramp Acts ofthe 1870, the states made ita crime for workers lacking vile means of support to travel about the count: these lows wee directed toward preventing marginal elements ofthe working clas fom moving into crimialty or becoming involved in community labor deputes, Implementation and enforcement of such statues continued through the Great Depesion and ino dhe middle Ta The Growth of Dioder 51 ofthis century. By 1960, under the guise of lepeimate exercise of thet police powers al states except West Viinia had pased, and enforced, ‘vagrancy laws against the unemployed pooe® Sate statutes were sup plemented in many locations by municipal ordinances, While leila tion varied from state to state, in the tradition of the “dangerour lasses” approach such aws clearly punished starus—the poor and the ile, able-bodied individuals who could work, but did not No legal ct was required: vagrancy alone wae sufficient cause for ares. Following the Depression and World War I eriticism of vagrancy nd loitering lavs in the United States by legal scholars and welfare practitioners excaated.” and the courts began to move toward elimi ‘ating status a a constitutionally permis bass for criminal punsh- ment. Tracing this process brietly up to the present, we find that legislation and corresponding egal doctrine applicable to the conta of much disorderly behavior have pased through several phases in the United States: inthe fist, ely wagrancy laws and other legislation ‘making status criminal ofense were passed these were soon suppe- mented, or replaced through intended reform, by antoteing laws lected moce specially at cera acts of behavior; when the cous ‘began wo old vagrancy ab well loitering laws unconstitutional, these laws were supplanted by more specific prohibition against loitering “for the purpose of” sme criminal activity euch ae postition or drug deal ing). The trend though these fret thee peri was toward a ejection ‘of stars-basedlegation, and a requirement that criminal offenses be tse upon specific behavior. Today, in the face of legal challenges ro “lotring for che purpose of” laws, legislation restricting or prohibiting specific behaviors, such as ying down ona sidewal, asking for money segresively or mote than once, or inendionally blocking pedestian ‘movement on sklwalks, is being developed ad tested inthe courts Vagrancy Lows and Status-Based Legislation ‘The fs succes eal challenges to vagrancy and loitering laws were lected at the exclusion by stats ofthe iinerant poot In Edwards ‘Calforaa (1941), the Supeeme Court struck down a Calon aw pro- iin the importation of pauper into the save And although the ‘Court's olding was hase upon Cafornissvielason ofthe Commerce SY Pain Bron Widows (Clnase—in attempting to ola isl from the efets ofthe Depres son-—concurring opinions by Justices Douglas and Jackson foreshad- ‘owed later Supreme Court decisions, attacking vagrancy as a status rote dec. Reingon the Priveges and Immunities Clause ofthe Fourteenth Amendment, the two juices wrote that property status lone was not accepable aa bas for iting the rights of tens Jus ‘ice Doupas so insisted tha he Califia law had violated the funda ‘mental ight o interstate mobili, aight ncdent cational as wells state, conch. ‘The Coure continued along this path with Shapio «Thompson (196), finding that requiements in Pennsylvania, Connecticut, and ‘the District of Columbia fora yeas tesidence prior applyng fr and receiving welfore benefits violated the fundamental right co travel among the states, and to equal protection.” Even though the states avowed purpose wast inhibi an influx of needy persons in ord preserve the fiscal itaprty of their public assistance programs, the ‘Court held that this goa was consticationaly impermissible: while the states could legitimately attempt to iit expenditures, even foe public assistance, che could not do so by creating n “nviiows distinction” between new and od residents who were needy or destitute. In addition to thee pronouncements with respect tothe status of over, the Supreme Court farther developed is approach to sare tse legilation generally during the 1960s. Tao decisions ate note worthy forthe present purposes in the ist, Robinson t. Clforia (1962, police had examined the accused, Robinson, one evening on 2 Los Angeles street and found needle marks and scabs on bis let arm, Robinson also admitted to the occasional use of narcotics. He was arrested and charged under a California saute making it mide- ‘meanot punishable by imprisonment for one to vse or be addicted to the use of narcdes. Calfornia courts had construed the statute as making the “stats” of narcotic addicion (thats being “addicted to the ure" of narcotics) criminal offense foe which an fender could be prosecuted at any time before he reformed: thus a person could be uly ofthe offense if addicted, regardless of whether fe or she had ever posesed or used any narcotics within the state. The United States Supreme Court struc down California's Iw, finding that impris fonment ofan individual where he or she might never have rouched a The Growth of Dioner 53 arctic within the state, nor carried out any iegular behavior there, fected cruel and unusual punishment, in volason ofthe Eighth and Fourteenth Amendments. ‘A few years Late, in Powell «Texas (1968), the Court considered whether a section ofthe Texas Penal Code prohibiting intoication in publ fll within che ambi of Robinson a impermissible, statu-bated legisation. Powel, chronic leoholc with along history of ress for drunkenness, wae arested and charged wich being fous avxicared in 2 public place In defense, he asserted that because of his chronic aleo- hols, his actions were involuntary and therefore could not consti ‘ally subject him o criminal punishment. Areal, Powel was found sly. Upon appeal, «divided Supreme Court upheld his convition snd the consitutionaiy of the law, finding that ulike che California statute the Teas provision id nt sec to punish status but rather to impose “a criminal sanction for public behavioe which may create sub- stand ealth and safer harards... and which offends the moral and esthetic senibliies of lage segment ofthe community! Although handed down inthe 1960s, Robinson and Powell igure sig nificantly in recent eases Bought by advocates for needy persons (che “homeless” the mentally il, and substance abusers) against cites that attempt t restr thelr behavior Specifically these cases are raised because they deal with the issues of status, and related “involuncary act" by individuals ofa particular status in public. The question posed in curren suits is whether Robnaon and Powell hould be interpreted to say that hfe sustaining act of homeless indivduals—Iyng down, sleep ing eating, storing property, even beging—are involuntary as earied ‘ut in pubic and cannot legitimately be restricted since they are tied 10 the “stars” of “homelessness.” Powel particular is troublesome asa suid becouse i represents a plurality opinion by four justices ofthe Supreme Cour rather than a clear majority. The plurality opinion did sckres the issue of involuntary acts byway ofa recur co the Robinson decision. Yee it didnot adopt the position advanced by advocates for the needy Te sumested in diene tha Robo stands or the. peep that “elimina penalies may not be tice upon pon fr being i 2 condition hei powerless change..." Whatever may be the mei of SA Fang Broken Windows such e doctrine of minal responsi iat cannot be dt flow fom Robin. The ene trust of Ram's interpretation ofthe Cruel ‘nd Unusual Punishment Cause fof the Eighth Amend) that rn inal peal ny be inte oly ifthe accued has commited ome at, ts cneneed in some behaving which socey har sn interest in evening or eas in ioral common lw ern, has commited some acs es [sul phyla. ech doesnot dea with the question of wheter ‘cera condet cannot cuztcutonaly be nie because i iin some seni, involuntary" o "ocasoned by acomgulsion."* ‘The debate over how Poul tobe applied arises fom the concuing pinion of Justice White, who voed with he plrality to determine the ‘outcome of the case, but explained his rationale in separate opinion: whe Powell might have prove that he had no choice ao whether he ‘ould drink at lhe did noe prove cat he had been compelled to drink ‘in public®” Advocates for the homeles have seized upon Justice White's words ro ase thai Powel had been homeless, he would have ‘ben powerless not to drink in public, and therefore his conviction would not have been upheld by the Court—an argument that raises homelesestelf toa states. Advancing the argument further, “sats- base’ restrictions on “ife-sustaining at when cari out by the "homeless" in public pars, on city sweets and in municipal buildings such as packing garages, shouldbe found impermisubl, since homeless {individual presumably have no access to privat space and therfore no choice but perform such acts in publi # Most courts to date have not adopted the view that homelessness ‘status, ofthe applicability of Justice White's opinion in Pell othe actives conducted by the homeless in publi: Instead, they have suhered tothe plurality opinion in Rowell and pa eecogition thatthe Supreme Court ite has not held the Eighth Amendment prohbiion of crue and unusual punishment to preclde punishing acs derivative ‘of a person's status, For example, the Califomia Supreme Court recently upheld a Santa Ana ordinance that proscribed camping om public propery, findings permitted punishment only for proscribed conduct and that i wat not clear chat the petitioner actully had no slteracves "eo either the condktion of being homeles or the conduct that led 10 homelesness and tothe cations [fr camplag on public a The Gruth of Dioder 55 propery." Simaly, when advocates for the homeles brought 3 challenge to San Francisco's Matex Program, which was aimed at end- {ng street crimes in parks and neighborhoods by prohibiting public ddnking and inebration, obstruction of sidewalks, camping in parks, public urination and defecation, graft, street prostitution, street sales ‘of narcotics, aggresive pankandling, nd dumping of ree the federal dls cout found in Jone w Cty and Coy of Son Francie homeless is ot edly clasfed as “satu.” Rather, expressed for the playin owe by Justice Marshal, dere i ostancal defn onal dition between asta. and a ‘condison... Whe he «once of ts might clude pect definion, certain factor ast in its determination, sucha the ivohntarnes ofthe scquton of that quale ey Gncaling the presence oe ao ofthat character a ih). and the deze to which an indvdulhas contol over tht characte." [Although soch holdings are noc uniform, the position taken by most, cours is that homelessness not a status, nor are acts delving fom the condition constitutionally protected from lestimat regulation. ‘Actes to Regulate Behavior: Lotering Laws [Even before vagrancy and stanu-batedleglation was widely invai- ated bythe cours, laws directed atthe at of otering also were passed and enforced. Many courts perceived loitering laws as one and the same with status-ased legislation, ever though some loitering laws tha heen passed wo replace vagrancy statutes, presumed tobe unl, with a constitutionally permissible form of regulation. Nevertheless, ring the 1960s and 1970s federal and cate courts began to strke down legislation regulating or profibiing loitering as well as vagrancy'? Two landmark eases by which the Supreme Court deat a fal blow to vagrancy and loitering statutes based wpon the status of poverty or vagrancy, were Fubar u Ci of Jackson (1972) and Kolender «Lawson (1983). In Ppachrisow, eight individuals, some of whom were Hack and others whic, had been charged with various acts of vagraney for “prowling by ao" and loitering. They were convicted of woking & Jacksonville, Florida, vagraney ordinance: "Rogues and vagabond, 56 Fung Broken Widows isolate persons who go about beging ..., persons wandering oF strolling around from place to place without any lawful purpose oF object. shall be deemed vagrant" Justice Douglas's majority opin ‘on fnvaliated the ordinance as "void for vagueness,” because i fale “to give a person of ordinary intelligence fair noice that his conter- plated conducts forbidden by the statute” and encouraged arbitrary and erate rests and convictions" Elaborating on these point the ‘Court emphasized thatthe Jacksonville ouinance was impenissible because it made criminal, innocent acts such as "wandering ot stalin” from place to place that had log been pat ofthe America twadiion. The result of casting a net so widely, according othe Court, was to place “unfettered dscreion” i the hands of police. The Court slko rejected the rationale that vagrany laws would prevent criminal behaviog, since the Fourth Amendment guaranteed arest only upon probable cause. ‘While in Papacriso the Court focused primarily upon the requre- ment of providing adequate notice asco what spec conduct const ‘ued criminal acivity, in Kalender w Lawton, the Court placed greater ‘emphasis on the danger of potenily discriminatory enforcement by police, Lawson had been stopped by police, asked for identification, and detained or arrested fifteen tes berween March 1975 and Janu ary 1977, each time while walking late at night on an slated street ‘near high-crime area o ina businese area where burglaries had been committed. He was charged under a section of the California Penal (Code that stated Every person who commits any the llowing acts ity fdr «conduct a midemeanot. e) who liters or wanders upon the sess or from place to place without apparent teton or busines and who refs to enti hiel nd to account fori presence when requested ty sr pre ce ot doi dhe routing Semen ae ec 2 to indicate to a reasonable man tha the publ afery demands such entiation. Wiring forthe Court Justice O'Connor found the statue filly ‘vague under the Due Process Clause ofthe Fourteenth Amendment for falling to “deine the criminal offense wth sufcent defstenes that ‘ordinary people can understand what conduct is prohibited and in | ‘The Grouth of Duorder 57 ‘manner that doesnot encourage atbitrary and discriminatory enfore- iment” Specifically, the statute lacked an explicit standard for deter mining how a suspect could satisfy che requirement of providing credible and reliable Mentifcation, and thereby encouraged arbitrary ‘enforcement by police, who would have to determine whether the requicement had been met each case! Following the Supreme Cour’s decision in Pigacrisow and to a eater degre after Kalender, other courts overtumed many vagrancy and loitering laws under che Due Process Clause of the Fourteenth ‘Amendient. Ordinances and statutes that fied constutional tests ‘were generally criczed on vagueness grounds fr filing to provide tudelines so tha teasonabe perons could avoid specifically unlwl behavior, and for leaving pie officers with unwarranted discretion in determining when behavior was unlawful and whether to arrest an individual. On overbreadth grounds, legdation was found fatally flawed for impermissibly sesrcting Fest Amendment constitutional freedoms. These court decisions sent a message to states and munici pilities that even though thet laws had noc ben tested hey probably ‘would not pase constitutional mute As a result, police ceased (0 enforce, and distri and city attormey to prosecute under, many laws that remained on the books. Other states and cities relied upon, ot ‘moved 10 pass new, statutes and ordinances directed a specific Behav ‘ors ater than the poor or tineran. Loitering “For the Purpote Of" Liws “The permisble constucional alternative to vague and overbroad statusbased leisaton was greater speciity and behavior-ivected ‘atures and ordinances. Even before the Papachrtw decision the cours began to define what would be required for legislation to wih: stand constitutional challenges. In Shutesworthw Cy of Bimingha | (4965), the Supreme Cour considered an ordinance providing that “it shall be unlawful foray person. 0s tad iter or walk upon any street or sidewalk inthe city eo obstruct ree passage ver ono along ‘sid streets sidewall," and tha “ie shal aso be unlawful for any per son to stand or iter. afer having been requested by any police of certo move on." The Court held that even though the ordinance, as 58 Fain Broken Windows rite, would violate the Fese Amendment, when construed moe nat row it would pas constcutional muster, since i applies only when a person who stands, liters, of walls on a street or sidewall #9 a8 t0 bsruct fee passage fuses 1 ay argu by an ofcer to move on ‘Then a series of New York ete beginning in the late 1960s set forth the rule that legislation prohibiting ecerng alone was unconsttuina but where “lotr” was used along with or to describe another spcieally proscrited act that leglation woul be valid” Drafters of uch eil- tion belived the specific itent element contained in a tatuteincompo- rating the words “loitering forthe purpose of" in conjunction with another unlawful activity, o pecing the manner of loitering 0 a © link otha unlawful ace, should ward off challenges based upon over: breadth or vaguenes In eft, the specie intent element would serve as notice that certain conduct was proscribed, s well as provide police vith guidance fr liming cei discretion and the equivalent of proba- ble cause to stop and amet. Carns Penal Code section 647(€), which provides that any person “who kites in or about any tlt open ‘0 the public forthe purpose of engaging in or slicing any lewd or las vious or any unlawful acti guily ofa misdemeanor typical of such, legislation. The Supreme Cour of Calfonia upheld the statute i Po ‘lew Supeor Court (Caswel) (1988), finding tha the requirement of knowledge tha certain conduct was unlawful and language speciing the place of enforcement, reedy mitigated any pocental vagueness by serving fair notice of the acts prosibed and providing adequate suidance to police to reduce their use of “unfertered” discretion in enforcement * "Lotering forthe purpte of legislation has produced a mixed bag ‘of reits, however, when tested in the courts. Some courts have l= Towed the seme rationale asthe California Supreme Court, upholding statutes or ordinances meveled on thi format. A Milwaukee, Wis

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