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«Columbia Population Research Center Advancing Research in Population, Health, and Society CPRC CPRC Working Paper No. 10-03 Race and Selective ...»

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Columbia Population Research Center

Advancing Research in Population, Health, and Society


CPRC Working Paper No. 10-03

Race and Selective Enforcement in Public


Jeffrey Fagan

Columbia Law School

Garth Davies

School of Criminology

Simon Fraser University

Adam Carlis

Columbia Law School

April, 2010

Unpublished manuscript. Do not copy or cite without author permission.

1255 Amsterdam Avenue ▪ New York, New York ▪ 10027



   Jeffrey Fagan   Garth Davies §  Adam Carlis ‡    ABSTRACT    Drugs, crime and public housing are closely linked in policy and politics, and their  nexus has animated several intensive drug enforcement programs targeted at public  housing residents. In New York City, police systematically conduct  “vertical” patrols in  public, making tens of thousands of “Terry” stops to detect drugs or weapons each year  under the Trespass Abatement Program, or TAP.  Both uniformed and undercover  officers move systemically within the halls and stairwells of buildings, temporarily  detaining and questioning residents and visitors, often at a low threshold of suspicion,  and usually alleging trespass to justify the stop. .  This pattern of selective enforcement  through elevated rates of high discretion stops in public housing under TAP raises  constitutional concerns at the intersection of the Fourteenth Amendment prohibitions  on racial discrimination – residents of public housing are overwhelming non­white –  and Fourth Amendment prohibitions on suspicionless stops. We use a case­control  design to identify the effects of living in a public housing development on the  probability of stop, frisk and arrest for trespass or other crimes in New York City’s330  public housing developments from 2005­8. We find that the incidence rate ratio for  trespass stops and arrests is 1.5 times greater in public housing than in the immediate  surrounding neighborhoods.  We decompose these effects using first differences models  and find that the difference in percent Black population in public housing compared to  the surrounding area predicts the disparity in trespass enforcement.  Four­wave cross­ lag regressions show that trespass enforcement in public housing is independent from  enforcement in the surrounding area, suggesting that public housing is specifically  targeted for intensive enforcement.  The results raise constitutional concerns about  equal protection.  Qualitative evidence suggests that stops have a stigmatizing effect  on public housing residents and their families, and that they inhibit basic social  interactions such as child care arrangements and family visitation. 


a The authors are grateful to the New York Civil Liberties Union, whose successful litigation under the New York State Freedom of Information Law led to the public release of the data on Stop and Frisk activities by the New York City Police Department from 2003-2008. We also thank the NAACP Legal Defense and Education Fund, Inc., for negotiating the release of Resident Survey data from the New York City Housing Authority. Finally, the Center for Constitutional Rights provided access to data on detailed local crime complaint data for New York City from 2003-2008. All opinions are those of the authors, as is the responsibility for any errors. Please address all correspondence to Jeffrey Fagan, Law School, Columbia University, 435 West 116th Street, New York, NY 10027, Tel. 212.854.2624, Fax 212.854.2624, Email jaf45@columbia.edu  Professor of Law and Public Health, Columbia University; Director, Center for Crime, Community and Law, Columbia Law School; Visiting Professor, Yale Law School § Associate Professor, School of Criminology, Simon Fraser University ‡ J.D. Candidate, Columbia Law School Race and Selective Enforcement in Public Housing – Workshop Draft  2

–  –  –

Crime and public housing are closely linked in the popular and political imagination, and have been so for nearly 50 years. It should be no surprise, then, that public housing has been a focus of policy interest by lawmakers as well as academics, and strategic interest by legal actors, especially the police. Throughout this time, a nearly intractable popular fear of urban public housing projects 1 has led to a variety of law enforcement tactics that place both residents and visitors under a very specific police gaze. This gaze has led to efforts to “contain” residents as well as to closely surveil visitors and neighbors from the surrounding communities who venture into its perimeter.

Relying on theories of order maintenance and on the recent jurisprudence of high crime areas, 2 police have adopted tactics that raise complex questions of legality and fairness. In recent years, for example, public housing residents have faced systematic, suspicionless searches of their homes, 3 banishment statutes, 4 and an increase in incidents of police misconduct. 5


1 See Michael H. Schill, Distressed Public Housing: Where Do We Go from Here?, 60 U. Chi. L. Rev.

497, 497 (1993) (“Scarcely a day goes by without reports in the media about the... problems that plague some publicly-owned housing developments. Accounts of appalling apartment conditions, corrupt administrators, and innocent bystanders killed by gang warfare are commonplace. Negative images of public housing have even found their way into popular culture.”). See also Sarah N. Kelly, Separating the Criminals from the Community: Procedural Remedies for “Innocent Owners” in Public Housing Authorities, 51 N.Y.L. Sch. L. Rev. 379, 382 (2006) (referring to public housing as a “dangerous environment”); Andrew Byers, Note, The Special Government Needs Exception: Does it Allow for Warrantless Searches of Public Housing?, 41 Wayne L. Rev. 1469, 1469 (1995) (comparing the conditions within public housing to a “war zone”). See also Jeffrey Fagan et al., The Paradox of the Drug Elimination Program in New York City Public Housing, 13 Geo. J. Poverty L. & Pol’y 415, 415--16 (2006) [hereinafter Fagan, DEP] (“In the last twenty years, the notion that public housing is, by its physical and social design, a dangerous milieu has been reinforced by rare but widely publicized episodes of youth violence, sequential drug epidemics, and elevated rates of drug-related violence.”).

Under current Supreme Court doctrine, those living in “high crime areas” receive less robust protection from the Fourth Amendment than do those in areas with lower crime rates. Andrew Guthrie Ferguson & Damien Bernache, The “High-Crime Area” Question: Requiring Verifiable and Quantifiable Evidence for Fourth Amendment Reasonable Suspicion Analysis, 57 Am. U. L. Rev. 1587, 1588 (2008).

3 See Sudhir Alladi Venkatesh, American Project 129--130 (2000) (describing the searches conducted by the Chicago Housing Authority and the Chicago Police Department as part of operation clean sweep).

Race and Selective Enforcement in Public Housing – Workshop Draft  4 In New York, the negative attention to public housing took the form of intensive enforcement of trespass statutes. Together with widespread marijuana enforcement 6 and extensive use of Terry stops (known as Stop, Question and Frisk, or SQF), 7 trespass enforcement was one of the core engines of Order Maintenance Policing, the influential policing model that has been credited with lowering crime rates in New York and that has

been adopted by police agencies across the country. 8 The results in New York are stark:

over 35,000 trespass arrests each year since 1995, most in public housing, and few that lead to convictions. 9 As with its strategic and policy predecessors, trespass enforcement in public housing was animated by the empirical and theoretical connection between drug selling and crime. But the modern version is a significant departure strategically from past public housing interventions to eliminate drug use and disrupt drug markets. Past efforts focused on evictions of tenants who were implicated in the drug business, as well as undercover drug buys in and around public housing to disrupt drug selling enterprises.

This form of “retail” enforcement had limited success through a succession of drug epidemics since the 1960s. Trespass enforcement was something new: a larger scale effort that was “wholesale” in two ways: its scope and reach, and the fact that it was implemented as a pre-emptive engagement with would-be offenders. The similarity in the patterns of street stops and trespass arrests under OMP have led to characterizations of trespass as a special version of Broken Windows theory with limited application to public housing. 10 In this vein, people moving about in the hallways and stairwells of


See generally Virginia v. Hicks, 539 U.S. 113 (2003) (finding that the trespass policy of the Richmond Redevelopment and Housing Authority, which banned certain individuals from housing authority property, did not violate the First Amendment rights of non-residents banished from the property).

5 In New York City, for example, complaints filed with the civilian review board increased sixty-six percent between 2002 and 2006. New York City Civilian Complaint Review Board, Status Report JanuaryJune 2007, at 11 (2007), available at http://www.nyc.gov/html/ccrb/pdf/ccrbsemi_2007_Jan_June.pdf.

Similarly, San Francisco has seen a “gradual increase in complaints of police misconduct.” The First Amendment and Police Misconduct: Criminal Penalty for Filing Complaints Against Police Officers, 27 Hamline L. Rev. 225, 239 (2004).

6 Levine and Small; Harcourt and Ludwig, Golub and Johnson, Geller and Fagan 7 Spitzer, 1999; Waldeck, 2000; Harcourt 2001; Garnett 2005 and in press 8 Skogan and Frydl, 2004; Kubrin et al., 2010 9 Bronx Defenders data, Legal Aid data 10 Wilson and Kelling, Taylor, Garnett, others Race and Selective Enforcement in Public Housing – Workshop Draft  5 public housing are a manifestation of underlying crime and disorder problems that justifies aggressive, pre-emptive policing.

Just as OMP gave rise to equal protection concerns because of its racial and spatial concentration, 11 the totality of trespass enforcement runs similar risks based on its shared policy and tactical foundations. And because of the social fact of the demography of public housing – predominantly non-white, poor and young residents – the trespassOMP link in public housing has led to claims of racial disparities in trespass enforcement. 12 These fears are compounded by the ease and low legal burden needed to engage a citizen-suspect for a high discretion crime such as trespass. In other words, trespass stops and arrests seem to be based not on the necessary predicate for stops – reasonable suspicion – but on broad-based high discretion police stops and interdictions of both residents and visitors alike at relatively low levels of categorically defined suspicion. This, in turn, has led to claims of widespread Fourth Amendment violations.

These issues are the focus of this article. They take on additional normative and constitutional importance in light of the limited efficacy of OMP in preventing more serious crime, 13 the observed racial disparities in its implementation, 14 and the history of constitutional concerns that have surrounded the policy. 15 We use a quasi-experiment to assess claims of racial disparities in trespass enforcement, and capitalize on variation in the siting of public housing across the city to determine if, compared to its immediate and adjacent neighbors, there are observable differences in trespass enforcement, and the extent to which these differences are attributable to race or differences in other relevant characteristics, especially patterns of crime, in the surrounding areas.

The article proceeds in four sections. First, we review the history of efforts to control crime in public housing. These efforts, which focused largely on evictions, date back to the heroin epidemics of the 1960s that coincided with the first of three sharp crime shocks to legal institutions as well as to the polity. Next, we examine the legal and background and tactical details of the trespass enforcement regime as practiced in New


11 Spitzer, 1999; Daniels v City of New York consent decree, 2003 12 LDF complaint, newspaper stories 13 Harcourt, 2000; Ludwig and Harcourt, 2006; Rosenfeld et al., 2007; but see Corman and Mocan (2003) 14 Spitzer, 1999; Gelman Fagan and Kiss, 2007, Fagan and Davies, 2000; Fagan et al. 2010 15 Daniels v City of New York, 2003.

Race and Selective Enforcement in Public Housing – Workshop Draft  6 York. The fact that the implementation of this design required a statutory modification of the state’s trespass law is a sign of the commitment by legal actors to pursuing this tactic.

We then discuss the details of the empirical test and present the result. The evidence shows that there is a racial disparity in trespass enforcement that cannot be explained by its crime predicates. While not providing evidence of intentional discrimination, we offer the test as a process of ruling out counterfactuals – violent or drug crimes, specifically – that are the predicates for the policy. We find that trespass enforcement is a function of the Black population in public housing, even after accounting for those counterfactuals.

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