Bratton, Broken Windows and the Anti-Graffiti Ordinance

Somewhat lost in all the controversy and hoopla around the hiring of Bill Bratton as a consultant on law enforcement issues in Oakland’s City council meeting of January 22 was the passage of the city’s also-controversial anti-graffiti ordinance. At first glance, these two things may seem unrelated. Yet upon closer inspection, they are linked in many ways.

Bratton, NYC’s former top cop, was a leading proponent of the “Broken Windows” theory, which Wikipedia  defines as “a criminological theory of the norm-setting and signaling effect of urban disorder and vandalism on additional crime and anti-social behavior.” Under Broken Windows, the thinking is that preventing small crimes, such as vandalism, leads to de-escalation of more serious crimes.

Broken Windows was applied in New York by Bratton during the Giuliani administration under the benign-sounding “Quality of Life” initiative, in which minor infractions– including subway fare evasion, public drinking, urination, graffiti and unlicensed “squeegee men” — were vigorously policed. It is essentially synonymous with the term “zero tolerance.” As part of Bratton’s policies, the poor, the homeless, and ethnic minorities were profiled and more frequently targeted.

Initially, the drop in NYC’s crime rate in the ‘90s was attributed to Bratton’s zero tolerance policies. However, years later, several critical studies by criminologists and sociologists emerged which debunked that view. In actuality, crime fell in many major cities during that period, both those who had adopted zero tolerance policies and those that did not.

According to a 2004 study, zero tolerance policies contained an implicit, racially-encoded, bias — based on the presumption that minorities and people with low economic status commit more crime. The fallacy most often mentioned by criminologists critical of Broken Windows is that crime committed by these groups is in fact a result of poverty and social conditions, not of an inherent predisposition to criminal behavior. In addition to racial profiling, criminologists have determined, zero tolerance policies lead directly to gentrification, improving the quality of life for residents only through the displacement of its poor, minority population.

One danger of broadly-stated ordinances common with zero tolerance policies is that they offer wide latitude for law enforcement to define offenses subjectively, which results in racially-skewed crime data, which is then reinforced by the further application of this theoretically-unsound practice.

That’s a vicious cycle.

Graffiti has been one of the primary targets of the Broken Windows theory, yet zero tolerance policies, when implemented, have failed to be effective at preventing its spread, even after raising fines and punishments.

It is often the position of law enforcement and the abatement industry that graffiti is a “gateway” crime, i.e. that the prevalence of tagging on public and private property attracts more taggers, or that the existence of graffiti invites blight, drugs, prostitution, and illegal dumping. This theory is often used as a justification for punitive policies which target low-income and/or minority youth and even their families.

In Oakland, however, a large portion of blighted areas where taggers have held sway were already unsightly before being subjected to tag-vandals. Given that one major causal factor of blight is foreclosures—which have become epidemic in the city’s flatlands, neighborhoods which tend to have a high concentration of low-income and minority residents—it seems like backwards thinking to attempt to apply Broken Windows here, since targeting graffiti won’t stop a single bank from foreclosing on a property. Foreclosures, of course, are also a cause of economic inequity, which is a primary causal factor for crime.

Just as has been the case with the war on drugs and the war on crime, the war on graffiti often amounts to a war on youth – and a war on poor and minority youth in particular. For that reason, it is with tremendous skepticism that CRP has viewed Oakland’s anti-graffiti ordinance. As we’ve stated in the past, there are many problematic aspects, both from an implementational and an enforcement standpoint.

These include:

  • The fact that the ordinance punishes property owners already victimized by vandalism by fining them for failure to remove graffiti within a limited period.
  • The double standard which will likely result from private property owners being subject to fines, while those same fines will almost certainly not be pursued against city-owned property, as well as property owned by state agencies.
  • The likelihood that evenly-applied enforcement of the ordinance across all of Oakland will be problematic, since Code Enforcement has only one inspector to cover the entire city and OPD has publicly stated that graffiti is one of 80 crimes it won’t investigate due to limited manpower.
  • The likelihood that out-of-town graffiti tourists and taggers from privileged economic backgrounds will not be targeted with the same frequency as low-income and minority youth.
  • The possibility of gang injunctions being enacted against graffiti vandals, an eventuality the ordinance paves the way for by including the legal technical language necessary to pursue such injunctions in civil court.

What’s perhaps most problematic about both Oakland’s hiring of Bill Bratton and its anti-graffiti ordinance is that they represent a shift in city politics toward tough-on-crime rhetoric as opposed to identifying and pursuing holistic solutions, which could have more beneficial long-term impact. When the graffiti ordinance was announced, it contained reference to employing a restorative justice model. Yet, as CRP has previously noted, that model was poorly thought-out. It took the vigilance 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 intent to work with community groups around RJ.

All of us in the public art community were encouraged by this step. We felt that there was an opportunity to develop the political will to enact a Mural Diversion Program which wouldn’t just punish offenders through fines and incarceration while offering no long-term solution to vandalism and defacement, but allow these offenders to direct their energies into community-building, beautification, and youth development efforts – thus reducing crime while creating a pathway for positive forms of expression.

However, with the hiring of Bratton by a near-unanimous of Council vote, we have to wonder whether the city has committed itself to the Broken Windows approach. That is to say, a theory which arrives at crime reduction only through dubious means: the criminalization of youth, increased profiling of minorities, the poor and homeless persons, and weasel-worded definitions of crime — resulting in biased data measurement which in turn leads to skewed perceptions of causality. We also have concerns about the correlation between zero tolerance policies and gentrification – which could very well be part of the political agenda of the current council.

We advocate for an alternate path: one where instead of gang injunctions, “stop-and-frisk” policies, youth curfews, punitive fines for running afoul of “quality of life” ordinances and other socially-and civilly-restrictive measures, the city adopts community-based solutions which raise the quality of life for its underclass and those living in areas beset by not only crime and blight, but poverty and environmental health hazards.

Despite Bratton’s hiring, we will continue to work with community-based organizations and city officials to develop holistic solutions to Oakland’s urban blight problem, employing a restorative justice approach to quality of life offenses that promotes youth development and results in healthier communities which retain their diversity and unique character.

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