Part II

Introduction

Rights advocates have legitimate concerns. The civil rights revolution of the 1960's was long overdue; responses by courts during the last 30 years in overturning laws that granted police, prosecutors, courts, juvenile institutions, and mental hospitals relatively unbridled authority over classes of persons--vagrants, for example--were appropriate.

But like so many revolutions, the rights revolution carried its own excesses. Rights became absolute. Freedom came to mean doing what one pleased, regardless of civic obligations, the impact of one's own behavior on the rights of others, or its impact on neighborhoods and communities. The awesome guarantees of the Constitution were not only trivialized to protect boorishness and incivility, but contorted to camouflage intimidation, threat, and fraud.

Citizens intuitively understand, however, that the goal of restoring order is neither repression of the powerless nor mere social "tidiness;" rather, citizens seek to improve the quality of life in neighborhoods. Most importantly, they have long known what social scientists have only recently documented: disorder is either a precursor to or accompanies serious crime.

My involvement in this issue resulted from an article I wrote with James Q. Wilson that is popularly known as "Broken Windows."⁽⁵³⁾ We argued that just as an unrepaired broken window is a sign that no one cares and invites more damage, so unattended disorderly behavior also signals that nobody is concerned and leads both to more disorderly behavior and to serious crime. Additionally, we claimed that disorder left unattended leads to a breakdown of community control, ultimately undermining the fabric of urban life and social intercourse.

In 1989, partially as a result of "Broken Windows," I became a consultant to the Metropolitan Transportation Authority, the parent organization of New York City's subway and its Transit Police Department (TPD), to assist with what was referred to broadly in the media, as well as TPD and transit staff, as the "homeless problem." The task before us was to define a problem, devise policies to address that problem, gain public understanding both of the problem and the appropriateness and potentials of various remedies, implement those policies and remedies, and defend those policies morally and legally. Out of this experience, principles emerged that may be of use to cities and governmental agencies attempting to address problems of disorder on city streets and in other public spaces.

First, to emphasize what has been noted earlier, the only proper target for order maintenance activities is behavior, not status. In the New York City subway system, the initial formulation of the problem was "the homeless." After study, it was clear that while homelessness was a social problem, it was not the problem causing fear among passengers. The problem was the behaviors of the group of persons, some of whom were homeless, but certainly not all. One of the most bothersome of these behaviors was panhandling, but it also included lying down in public spaces, public urination and defecation, farebeating (jumping turnstiles), and other such behaviors, all of which violated existent, enforceable subway rules.

Second, maintaining order raises important moral issues about which people feel strongly. The vast majority of the stakeholders in the transportation system, which include New York's political leadership, users of the system (consumers), employees whose task it is to deal with the problems of disorder (police and other transit staff), and media representatives, wanted assurance that dealing with the problems of disorder in the subway recognized and was sensitive to the moral issues raised by homelessness, hunger, and need. This did not mean that subway staff and police should become social workers or that the subway should be turned into a gigantic flophouse; the subway system's constituencies wanted assurances that police and transit staff would try to link the genuinely needy with services and that, if need be, transit officials would go to heroic efforts to be humane in their handling of needy persons. This was not only right, it was good strategy--both externally and internally. Externally, getting and maintaining the high moral ground was essential to maintain public support and to develop judicial approval for order maintenance activities. Internally, it was necessary to ensure that police officers and other criminal justice officials did not view themselves as society's "dirty workers," doing what had to be done to "scumbags" and other demonized "undesirables." They needed an explicit, widely recognized base of authority that was rooted in morality, legality, and constitutionality.⁽⁵⁴⁾

Third, despite fears that definitions of disorder divide citizens and lead to the imposition of the values of a dominant majority on powerless minorities, surveys and focus groups of transit users of all backgrounds demonstrated that a broad consensus existed about what constitutes disorderly behavior and what should be done about it. Moreover, despite charges of advocates that enforcing standards of behavior in the subway pits blacks and other people of color against whites, and rich against poor, this simply was not the case; many users of the subways--those who must use the subway--are the working poor of all races who desire to travel to and from their work in a civil and nonthreatening transit environment--and who deserve such quality public services.⁽⁵⁵⁾

Fourth, those who are responsible for developing laws and policies about complex problems like panhandling must communicate with the general public as clearly, simply, and directly as possible. Unfortunately, sloganism and inaccurate language abound. "Homelessness in the subway" is an example: everybody supposedly knows what is meant by the phrase. Not so. True, some of the people who are categorized as homeless are. Many others who look and behave like the homeless are hustlers and scam artists who prey on the pity and/or fear other subway users feel. Others are drug users and the disturbed who cannot or will not live in homes or shelters or make use of social services. Likewise, legal concepts like freedom of speech, individual rights, and civil rights are complicated, and they need to be rigorously understood and applied. None are absolute. All are enjoyed within a context of social and civic obligation.⁽⁵⁶⁾

Fifth, attempts to maintain order will be challenged. In the case of the subway, legal challenges came from homeless advocates who challenged the anti-panhandling section of the subway rules.⁽⁵⁷⁾ However, bureaucratic challenges resulted as well: from unions who feared for the health, safety, and professional status of their constituents; from managers who doubted that anything could be achieved to improve the subway environment; from attorneys who questioned the constitutionality of behavioral restrictions; and from staff who were morally perplexed about just what the proper responsibility of a transit system was to the poor and genuinely homeless. Likewise, some politicians and sister governmental agencies either challenged the efforts or attempted to duck or stonewall the issue. Some challenges were of good faith and high moral intent, despite being, from my point of view, ill-advised and short-sighted. Others were less principled. Some managers simply did not want to bother; some unionists wanted to use the crisis to their bargaining advantage; some lawyers simply did not want to risk losing a case or an appeal; and some advocates wanted to keep the "homeless" literally "under the noses of New Yorkers" for political purposes, regardless of the day-to-day consequences for genuinely poor persons or the long-term consequences to the transit system.

Sixth, as a consequence of five above, leaders and managers must "mean it." Restoring order will be hard work. Properly defining the issues will take rigorous social and legal research and policy analyses. Communicating with the public will be difficult; media responses will often be ambivalent at best. Getting the commitment of police and law enforcement agencies will be troublesome: some already feel terribly overburdened and fail to understand the linkages between disorder and serious crime--at least at the operating level. There will be losses along the way. Advocates can create confrontations in which police and law enforcement agencies can be made to appear petty or mean. Shibboleths such as "freedom of speech," "individual rights," "concentrate on serious crimes," and "police brutality" will be thrown up with little acknowledgement of the complexity of the issues that are encoded in the phrases. Some courts will intervene--at times properly, aborting ill-conceived laws and programs--at other times improperly, failing to understand the issues or capitulating to what they perceive as their political interests. In New York City, advocates obtained a court injunction that seriously threatened early efforts; however, that was subsequently overcome and the effort was sustained.⁽⁵⁸⁾ Nonetheless, the hard work paid off: order is being restored in the subway.

Finally, confronted with advocates, dug-in staff or bureaucracies, and unpredictable media--the hosts of obstacles that constitute the hard work described above--it will be easy for leaders to become intolerant. It is important for them to understand that the legitimate demand for order can also have its excesses. Neighborhoods and citizen groups can be petty and mean as well as hospitable and protective. The values that advocates of increased order are attempting to maintain include respect for diversity. In New York's subways this means that the obligation of the police is not just to maintain order, but also to encourage tolerance and respect. Police and criminal justice agencies must represent similar values on city streets and other public spaces as well.

What impact has increased order maintenance had in the subway? Ejections for rule violations have tripled since the efforts have been fully implemented. Arrests for misdemeanors are up dramatically, although arrests for felonies have remained steady. While it is early and subways are different than city streets, the TPD's increased order maintenance activities correlated with a drop in a crime that was five to six times faster than the drop in Part I crime⁽⁵⁹⁾ reported in the city at large. Today, riders in the New York City subway have less chance of being robbed than 2½ years ago when the possibility on any given day was 1 in 50,000. This was accomplished without an increase in citizen complaints of police abuse. Similar results have been obtained by other Metropolitan Transportation Authority railroads--the Metro North Railroad in Grand Central Station and the Long Island Railroad in Penn Station--which adopted policies similar to the subways. Likewise, the Port Authority Bus Terminal, which adopted rules and regulations and enforcement policies like the MTA's, are enjoying comparable declines in serious crime.

Citizens are demanding a return to the full concept of civil liberties: the natural liberties of American citizens protected by the Constitution shorn of the excesses that invade the equal rights of others.⁽⁶⁰⁾ It is possible to do so without violating the rights of individual citizens. Preliminary indications in New York are that order maintenance, aside from protecting the rights of all citizens, reduces serious crime as well.

GEORGE L. KELLING
Professor of Criminal Justice,
Northeastern University