CRP Statement on Oakland’s Proposed Anti-Graffiti Ordinance

On November 2—just four days before the election—City Attorney Barbara Parker and Councilmember Nancy Nadel released a proposed amendment to Oakland’s municipal code which targeted graffiti vandals. Under the proposed ordinance— whose impetus reportedly came as a result of “Occupy”-style protests—graffiti would be classified a “public nuisance” and offenders charged with misdemeanors, rather than citations. The ordinance also calls for increased penalties—including fines as high as $750 per infraction—makes parents liable for damages caused by underage offenders, requires business and property owners to remove graffiti within 10 days of notice or be fined, allows the city to recover costs of investigation and attorney’s fees, and also allows Merchant Associations and Business Improvement Districts (BIDs) to recover their costs. Parker also claimed the ordinance “allows for use of restorative justice in lieu of penalties.”

While Parker maintains the ordinance represents “Oakland’s first comprehensive [anti-graffiti] program,” in reality the ordinance appears to be just another flawed tough-on-crime attempt by a politician running for reelection. In an East Bay Express article, one of Parker’s own staffers—Deputy City Attorney Richard Illgen—admitted that “the ordinance is intended to be part of a multi-step approach, not the only city mechanism to address this problem.” Illgen doesn’t explain what the other steps are, and goes on to say the ordinance is “not a program” which addresses Oakland’s graffiti problem overall—which seems to directly contradict what his boss said in her press release.

Mural  The East Bay Express’ photo for the story illustrates the issues but the article did not do any real investigation.

As written, the ordinance is problematic on a number of levels. While it claims to be for the benefit of property owners and businesses, the ordinance would in fact levy fines against the victims of graffiti vandalism, thereby increasing the city’s coffers. There is little doubt the ordinance represents the latest attempt at criminalization of youth, going so far as to allow for liens against the property of graffiti offenders following a criminal conviction. The ordinance also contains many redundancies: vandalism of property above $400 in damages is already a felony under state law, and punishable by fines and imprisonment ranging from six months to a year.

But here’s where the ordinance gets really tricky: in declaring graffiti a public nuisance, it is essentially laying the framework for not only civil penalties – which don’t carry the same Constitutional right to an attorney as criminal cases – but also for declaring graffiti crews criminal street gangs, and enacting either gang injunctions or the STEP Act, which allows for gang enhancements to be added to sentencing guidelines; under California’s Proposition 21, gang-related offenses are subject to additional terms—as much as four years for nonviolent felonies. Graffiti is specifically addressed in Prop. 21, which defines it as “any unauthorized inscription, word, figure, mark, or design, that is written, marked, etched, scratched, drawn, or painted on real or personal property.”

Passed in 2000 by California voters—despite protests from groups like the Ella Baker Center for Human Rights and Third Eye Movement, who called it a war on youth—Prop. 21 led to the mass incarceration of juveniles (who could legally be tried as adults) and was a contributing factor in the rise of recidivism rates (currently at about 70% statewide). Prop. 21 also allowed for fines for graffiti offenders ranging from $1000 to $50,000, depending on the amount of property damage done. But it failed to be an effective preventative measure or stop graffiti.The lesson of Prop. 21 should be that punitive measures which target youth simply don’t work. On the surface, Oakland’s anti-graffiti ordinance appears to be just that.

California’s Prop 21 vastly increased the penalties on youth but has not had a significant effect on crime.

What the ordinance essentially does is increase penalties for graffiti and shift the cost of pursuing graffiti cases from the District Attorney’s office to the City Attorney’s office, while ensuring that those costs can be passed on to the perpetrators, and their parents, if need be. As previously stated, it also establishes a 10-day window for property owners to remove graffiti, or be charged, by the city, for doing so.

However, many questions around implementation and enforcement remain. It’s unclear, for instance, if the City Attorney’s office would pursue gang injunctions against graffiti crews; at a November 27th hearing of the Public Works committee, they did not rule out the possibility. Though there is strong community opposition to gang injunctions in Oakland, similar tactics have been used in Los Angeles (a city which had a 10-year moratorium on murals on legal murals), where at least one person convicted og a graffiti offense received an eight-year sentence.

It’s also unclear whether enforcement will be applied selectively: will the city of Oakland fine itself for graffiti on property it owns? Will blighted, foreclosed homes owned by banks be subject to the same penalties incurred by businesses and property owners? Will CalTrans, BART and Union Pacific—on which 50% of “tag-blighting” incidents reportedly occur, according to City Councilperson Rebecca Kaplan—also be held up to the 10-day graffiti-removal statute?

Moreover, will anti-graffiti squads harass high-profile former street artists who have gone legit, to make an example out of them, as has happened in New York, LA, and numerous other cities? Will the rebuffing of walls lie on the shoulders of Building Services, a city department so inept, it triggered a Grand Jury investigation and subsequent report that found “evidence of corruption, excessive fines, and a nearly nonexistent appeals process,” as the East Bay Express reported in a March 2012 cover story? Can we trust overzealous abatement crews whose income is dependent on graffiti removal not to buff out legal or sanctioned murals, as they did to a mural at Gompers High School in Richmond in 2011?

The Richmond City Council paid $1,000 to students to repaint their mural after their graffiti abatement service mistaken erased it.

Furthermore, will civil cases be pursued equally against the 30 year-old white hipsters Nadel claims are responsible for the majority of graffiti in West Oakland as against Cholo-style taggers in the Fruitvale? And if cases are pursued, will the outcome be that low-income and/or minority youth who can’t afford lawyers receive disparate punishments?Many questions in particular remain around the “restorative justice” component briefly mentioned in the press release. As Oakland North reported, the city of Oakland contracts out to Community Works, a Berkeley-based non-profit which specializes in applying RJ to the most violent juvenile offenders. However, Community Works has no prior experience in administering graffiti cases, and does not include a public art component in its programs, which are centered around creative writing and theater productions.

This is troublesome for a variety of reasons.  For one, it would seem that Community Works is not the ideal program to administer graffiti cases. If nonviolent graffiti offenders are lumped in with perpetrators of violent crimes, that could result in an increased possibility of conflict and physical harm, as well as the possibility that such close proximity to violent offenders could become a gateway path for career criminals and/or be a recipe for recidivism.  Bringing kids in from all areas of Oakland to a program in Berkeley could also be risky, especially if there is pre-existing tension between different neighborhoods.
At the November 27th hearing, the city essentially admitted the RJ component wasn’t well thought-out, sending the ordinance back to committee until those details could be worked out. Before the committee reconvenes, it might be a good time to rethink not only how the RJ component is going to work, but also re-examine Oakland’s ineffective and inefficient abatement strategy.
The reality of the “graffiti problem” is that it will never be entirely eradicated. Abatement is at best a short-term remedy, while punitive measures don’t prevent graffiti from happening in the first place. Anyone complaining about the problem needs to examine the underlying causes and ask themselves, what are the reasons people do graffiti in the first place?

Graffiti abatement has proven to be band-aid solution for vandalism.

For many youth in inner-city areas, graffiti represents the voice of the voiceless and disempowered. It is also often a reaction to the lack of art in public spaces and an expression of creativity. While tagging can be an annoying eyesore, it is also the first stage in artistic development; there is a progression in street art from tagging to pieceing to full-on mural production. Many successful commercial artists and graphic designers started out doing illegal graffiti; by leaning heavily on a punitive approach, it discourages potential professional painters and artists from following a career path. Furthermore, Restorative Justice experts say, strictly punitive approaches don’t work and only lead to recidivism.
So, what does an actual comprehensive anti-graffiti program look like? For one thing, it needs to weigh as heavily on Restorative Justice and developing viable alternatives which deter tagging as on enforcement measures. Since graffiti cannot be prevented, the best we can hope for is effective diversion programs. Yet these need to be community-based and not strictly administered by the city. These programs should also be carefully monitored, to ensure there is not a chilling effect on sanctioned public mural programs.; it’s entirely ironic for Oakland to be targeting street art at the same time it’s trying to change its identity from a city known for crime, drugs and sex trafficking to one known for world-class artists via the First Fridays monthly artwalk.

A passerby poses with artwork painted live by CRP at Berkeley’s Sunday Streets. Many Bay Area cities are using art to attract traffic and attention to local businesses.

A truly comprehensive anti-graffiti policy would be built around an inclusive and innovative community art and youth development program, with buy-in from all stakeholders: property owners, neighborhood residents, CBDs/BIDs, all relevant city departments, community art organizations, youth-oriented RJ programs.  Ironically, this is the same strategy touted by self-described “graffiti consultant” Julius Szasbo, author of “Defacing America: the Rise of Graffiti Vandalism,” who maintains the efficacy of “building community partnerships in order to establish murals” as part of his best practices recommendations.
That philosophy essentially mirrors the program work of CRP and other Oakland-based community art organizations, such as East Side Arts Alliance, the Estria Foundation, Trust Your Struggle, and the Rock Paper Scissors Collective – who have formed a group, the Oakland Community Art Coalition, to address this issue. As concerned public art advocates dedicated to developing alternatives to abatement, we maintain that what’s needed isn’t high-priced outside consultants, and more questionable attempts at punitive enforcement, but neighborhood-based remedies and experiential programs which further youth and artistic development.
One community participatory model which has worked in Oakland is the Laurel Neighborhood BID’s, which formed a volunteer abatement team which eradicated 209 tags and painted 9 murals – with only two cases of tag recidivism. Another is CRP’s recent partnership with the People’s Grocery, which replaced a frequent target of tag blight alongside a high-traffic transit corridor with a massive mural celebrating food justice, b-boying, social justice and community history. While doing this large-scale mural, CRP actually received the blessing of the tagging crew who were defacing the wall—who traded paint with our artists. The tags, once so prevalent, have not returned. This project also involved a massive clean-up of illegal waste, landscaping, the establishment of a community garden, and a neighborhood block party.

A father and son collaborate as part of CRP’s mural on People’s Grocery. This wall was one of the most repeatedly vandalize walls in Oakland until a mural was put on it.

Finally, the political will to enact an innovative approach to the graffiti problem must be realized. The City Council should be commended for its stated intention to amend the ordinance to further develop its restorative justice component. However, that needs to be a sincere effort, and one not at cross-purposes with the City Attorney’s stance. Other city departments such as Building Services, Code Enforcement, and Parks and Recreation need to be on the same page, as do public transit agencies. Simply throwing taxpayer money into a black hole, as Oakland’s current abatement strategy does, is not a solution which can hope to be effective in the long-term. The proposed anti-graffiti ordinance won’t change that, and may in fact exacerbate existing issues around abatement. The sooner Oakland’s elected officials realize this, the sooner that actual solutions to the graffiti problem can be remedied.
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  1. […] and attention of CRP and the Oakland Community Art Coalition to read the fine print and make recommendations to the City Council which resulted in several modifications to the ordinance, including the stated […]

  2. […] reiterated its public stance at the Oakland City Council meeting on Tuesday. With the toughening of the penalties for vandalism, […]



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