“Thank you. People who look like you don’t usually help people that look like us.”
We stood together in a hallway outside of the courtroom. Me, a young public defender, fresh out of law school and in my fourth month on the job. My client and her boyfriend, a young black couple in their 20s, who had been pulled over by CMPD officers for a registration violation.
We had just won a trial; my client was found not guilty of resisting a police officer. She and her boyfriend were stopped while they were running to the store to get milk for their baby. The police had escalated the situation; as they dealt with her boyfriend, my client tried to tell the officers that the car had valid registration and that the paperwork was in the glove box. In the hallway after the judge delivered his verdict, my client’s boyfriend shared his perspective. His words were honest, raw, and a little jarring; but were a reflection of the harsh reality of what it can be like to be a young, black man living in Charlotte.
The conversation resonated with me. Last Thursday, I celebrated my three-year anniversary as an Assistant Public Defender in Mecklenburg County. Every day, my colleagues and I go to work to help people. Our clients are people: not case numbers, not crimes, not prior records, not mugshots. They’re mothers and fathers, sisters and brothers, husbands and wives. They have families, they have jobs, they go to church and go to school. Some have fallen on hard times and are unemployed. Some are battling addiction, child custody disputes, eviction. My job is to help them through their trying times; no matter what happened, no matter what they allegedly did, or didn’t, do.
Right now, the Charlotte-Mecklenburg Police Department is working on a policy known as a “public safety zone” that they say will help cool off hot spots of crime. If passed, a public safety zone ordinance would ban people with past arrests or current pending charges from certain areas of the city, as designated by CMPD. The people targeted under this proposal would be prohibited from entering the designated area, and if caught, they could be charged with a misdemeanor for entering the zone.
CMPD’s public safety zones proposal targets the people and communities I work with every day. That’s the harsh reality. Not only will these zones target low-income areas and poor neighborhoods in Charlotte, they will disproportionally affect African-Americans and other minorities. They won’t necessarily reduce crime and will stigmatize those who have only been charged, but not convicted. They will give CMPD unfettered discretion. Enforcing the public safety zones and litigating legal issues surrounding them will cost a lot of money. This proposal, if it becomes law, will infringe on our constitutional rights and pose a host of other legal issues. CMPD’s public safety zones will do more harm in Charlotte than good.
A public safety zone is an exclusion zone.
CMPD’s proposal is still in the early stages; no ordinance has been written and nothing has been submitted to the city council for a vote (though that could happen by the end of this year).
These so-called “public safety” zones are in reality exclusion zones, as they are referred to in legal research, because that’s what they are: areas designed to exclude people.
Exclusion zones won’t reduce crime.
According to CMPD, the goal of exclusion zones is to address criminal behavior and reduce crime, with added benefits of “repairing a neighborhood’s reputation and disrupting criminal nuisance activity.” But these zones won’t be effective and won’t reduce crime.
Data from other cities that have implemented similar exclusion zones shows that this strategy has been ineffective in reducing crime for a few reasons. First, exclusion doesn’t keep people from the area; those banned from an area can (and do) ignore the order and continue to go into the area anyway. Another law or rule doesn’t necessarily change the behavior of a person who is accused of breaking the law (or who has been found guilty of breaking the law in the past).
Second, rather than reducing crime overall, exclusion zones displace people and crime by pushing crime into other areas of the city. This was seen in cities like Eugene and Portland, Oregon, where crime in areas neighboring their exclusion zones increased by as much as 24 percent. Similarly, Charlotte’s prostitution-free zones (which were established under a law enacted in 2005) pushed crime out into nearby areas; within one mile of the zones, and the number of service calls increased by 62 percent.
Most importantly, ostracizing people from their support systems and resources could make them more likely to reoffend. Recidivism research reveals that people who are incarcerated are more than seven percent likely to reoffend than their counterparts who are given a community-based punishment. While exclusion zones aren’t automatically “go directly to jail, don’t pass go, and don’t collect $200,” type areas, they are likely to cut individuals off from their communities and support systems, similar to what happens when someone goes to jail.
Exclusion zones will target low income and poor neighborhoods.
Exclusion zones will target Charlotte’s poor neighborhoods. Under the proposal, CMPD would declare safety zones in “high-crime, high-drug areas.” What Charlotte neighborhoods do you think of when you think of a “high-crime area”?
When someone talks about a “high-crime, high-drug area,” I bet the first place that pops into your mind is not Dilworth, Myers Park, South Park or Ballantyne. But the truth is, there is crime across city of Charlotte; people commit crimes in Myers Park, and there’s drug activity in Ballantyne. On Sundays in the fall, thousands of people blatantly violate the city’s open container law while walking down Mint Street to Bank of America Stadium, and police officers turn the other way.
I can guarantee you that CMPD is not going to set up their exclusion zones in Myers Park, Ballantyne, or in South End on Panthers’ game days. Rather, the zones will focus on neighborhoods that are thought of to be “less desirable.” You know the ones I’m talking about: neighborhoods like Hidden Valley, the North Tryon corridor, and west Charlotte. Poorer areas in our city where there are a higher percentage of African-American and other minority residents and a higher police presence.
Exclusion zones will disproportionately affect African-Americans.
Exclusion zones are aimed at people who are arrested. People of color are disproportionately arrested and thrown to the mercy of the criminal justice system. This fact is blunt, but it’s true.
- According to the Federal Bureau of Investigation, since the 1990s, U.S. police officers have arrested black people for drug crimes at twice the rate of white people, despite the fact that white people use and sell drugs at a comparable rate (or sometimes, an even higher rate) than black people.
- While people of color make up about 30 percent of our country’s population, they account for 60 percent of people who are imprisoned.
- According to the Bureau of Justice Statistics, one in three black men can expect to go to prison in their lifetime.
- According to the U.S. Sentencing Commission, once convicted, black people receive longer sentences compared to white people.
- Data from the Department of Education reveals that students of color face harsher punishments in school than their white peers and that black students are arrested far more often than their white classmates.
Research on prohibited zones (which are similar to exclusion zones) in Massachusetts and Connecticut shows communities of color are disproportionately affected by the zones, and suggests that there may be sharp racial disparities in the way that police choose to enforce the crime-free zone laws. Similarly, a result of a data analysis on Portland’s exclusion zones shows that police discriminated against African-Americans when enforcing the exclusion zones: African-Americans were excluded 68 percent of the time while white people were excluded 54 percent of the time.
There are racial disparities in policing in Charlotte. A UNC study released in April revealed that in Charlotte, black people are pulled over by CMPD more frequently, receive more tickets, and are searched twice as often as white people. So why do we think the policing and enforcement of exclusion zones will be any different?
Exclusion zones will ban people from certain areas based on mere accusation.
What happened to innocent until proven guilty?
Due process acts as a safeguard from arbitrary denial of life, liberty, or property by the government. Exclusion zone bans completely circumvent due process, a core concept in our country’s laws, procedures and foundation.
Typically, before stripping a person of his liberty and rights, the government has a high burden (the highest burden in our justice system) to prove him guilty beyond a reasonable doubt. Exclusion zone bans, however, deprive people of their rights (their right to travel, their freedom of association, essentially the ability to live their lives as they choose), using a much lower standard. Bans in certain areas are only based on the mere accusation of one, or a handful, of police officers that a person has committed a crime. An accusation is simply too low of a standard for banishment from neighborhood, where a person might live, work or associate. The threshold for restricting someone’s liberty should be beyond a reasonable doubt; just like it is for a criminal conviction when liberty is at stake.
We already have legal mechanisms in place to exclude certain people from certain places when they are convicted of a crime. Judges currently have the power to exclude a person from going somewhere or doing something as part of their sentence. If a person is found guilty of stealing from Wal-Mart or Target, a judge can order that person not to return to the store. If a person is found guilty of assaulting or harassing someone else, a judge can order them to have no contact with that person. We don’t need these zones to impose exclusion.
A blanket ban makes it more difficult for people who have been arrested and charged with a crime to bounce back. Rather than providing people with the support and resources they need after having been arrested for a crime, charged with a crime or convicted of a crime, CMPD’s exclusion zones seek to limit people from important tools and resources they could be using. A person with an arrest could be limited access to employment, accommodations, medical treatment and other essential services and recreational activities.
Additionally, CMPD’s exclusion zone plan makes the assumption that everyone who has ever been arrested is a potential threat to a community. That’s a totally unlikely proposition. By the age of 23, 41 percent of all Americans have been arrested at least once. The wide net this plan casts doesn’t target people who are dangerous to our communities (those who have extensive criminal histories and continue to reoffend); instead, it affects anyone who has ever been arrested (again just an accusation). Hundreds of dismissals are entered every day by the district attorney’s office for people who have been arrested. Maybe by going back to the drawing board, CMPD could develop a plan to help our communities and target those people who are chronic offenders.
Exclusion zones are unconstitutional and raise more questions than they answer.
You didn’t think you were going to get through an op-ed written by a lawyer without any boring legal and constitutional points, right? I promise I won’t dwell too long on the nerdy law stuff, even though that is the center of my argument. There is a whole host of legal, constitutional and procedural issues involved with CMPD’s proposed public safety zones. CMPD attorney Mark Newbold acknowledged in his letter to the City Council that “there are significant constitutional hurdles that must be addressed,” and that the ordinance would have to reconcile “core constitutional principles.” Yes, that’s the police department’s attorney giving us a heads up that these zones could be considered unconstitutional, or that they would be subject to a number of legal and constitutional challenges.
The glaring constitutional issue is the exclusion zones’ effect on a person’s freedom of movement and freedom of association. The freedom to travel between states is firmly embedded in our country’s history. As the Supreme Court has noted, “[w]e are all citizens of the United States; and, as members of the same community, must have the right to pass and repass through every part of it without interruption, as freely as in our own States.” Exclusion bans would prevent people from participating in casual community activity and encroach upon a substantial amount of innocent conduct (this list is exhaustive), including visiting family, attending church, going to the grocery store, talking with friends on the sidewalk, going for a walk, or spending a few quiet moments in a park.
Other legal concerns include a person’s right to due process (discussed above), the 6th Amendment right to counsel, the 5th Amendment protections against self-incrimination and double jeopardy, and the 4th Amendment protections against unreasonable searches and seizures. Exclusion ordinance citations (when a person is actually banned from an area, not when they are found to be violating the ban or trespassing) are typically a civil process, not a criminal process. Therefore, person is not entitled to a lawyer to help them challenge the ban, even though a violation of the ban could result in a new criminal charge. Unless he can afford an attorney, a person has to navigate the law and process himself, usually with little understanding.
Without an attorney, the bans could interfere with a person’s 5th Amendment protection against self-incrimination. Rather than having a lawyer speak on their behalf at ban hearings and appeals, defendants may share information that later can be used against them during the criminal proceeding for the crime they were arrested for. Additionally, the 5th Amendment’s double jeopardy clause protects us from receiving more than one punitive sentence for any given offense. In the case of an exclusion zone ban, a person may receive two punishments: a pre-conviction ban from a specific area and then whatever penalties are determined by a judge at sentencing for the underlying criminal offense.
Exclusion zones will give CMPD unfettered discretion.
Under the proposal, CMPD Chief Kerr Putney would be able declare certain areas exclusion zones without having anyone else approve of his declaration, which would give police unchecked authority in declaring and policing the zones. Our justice system is a system of checks and balances, not one of rampant police authority. While a police officer makes an initial decision to arrest and charge a person, that decision is then reviewed by a whole host of courtroom actors, including magistrates, prosecutors, defense attorneys and judges. These checks and balances hold the police accountable for their actions, and make sure police act in accordance with the law. Research suggests the heightened level of policing that comes with the creation of exclusion zones creates more of a “police state,” in which police intervention and government restriction is intensified.
Exclusion zones also interfere with our 4th Amendment protections against unreasonable searches and seizures by police. Excluded people would become subject to arrest without probable cause, search incident to arrest, jail time and convictions for their mere presence in a geographical area. Excluded people would have to carry paperwork to prove they could enter forbidden zones. Why don’t we just make everyone who is banned wear a scarlet letter?
Exclusion zones will be expensive.
Enforcement of exclusion zones isn’t going to be cheap. The city and county will need to spend money to support the zones. To make the zones work, CMPD will have to increase the number of police officers to enforce the zones. The city and county will have to spend money in order to support the increase of cases coming through the courthouse, including situations where people are contesting or appealing their bans and those cases where people are charged with violating a ban. The county will have to spend money housing and feeding inmates who are arrested for violating their zone bans. And what about any litigation costs the city or county will have to spend if the zones’ constitutionality is challenged in a lawsuit?
Exclusion zones are bad for Charlotte.
I’ve lived in Charlotte for three years, and I’m proud to tell people that Charlotte is my home. I brag about the great things the Queen City has to offer: the arts, the food, the sense of community. Charlotte is progressive, and I’m happy to witness and be a part Charlotte’s growth and progress. Exclusion zones don’t align with Charlotte’s tremendous sense of progress and community; in fact, the zones would interfere with progress and segregate and divide our city. If crime is an issue in Charlotte, CMPD and the city council shouldn’t implement exclusion zones, but should find a better solution. CMPD and the city should look to restorative justice options, and consider collaboration with social service agencies. The city should put money into social services, schools, jobs, skill training, treatment opportunities and the overall economy and our communities; and not into a plan that will clog our jails and courts.
There are other ways that we could create a safe, inclusive and vibrant community; a Charlotte that we are proud to call home.
(Photo credit: Katie Nelson)