Race and Selective Enforcement in Public Housing

• DOI: http://doi.org/10.1111/j.1740-1461.2012.01272.x
• Published date: 01 December 2012
• Date: 01 December 2012

Race and Selective Enforcement in

Public Housing

Jeffrey Fagan, Garth Davies, and Adam Carlis*

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 housing

buildings, making tens of thousands of Terry stops each year. During these patrols, both

uniformed and undercover officers systematically move through the buildings, temporarily

detaining and questioning residents and visitors, often at a low threshold of suspicion, and

usually alleging trespass to justify the stop. We use a case-control design to identify the effects

of living in one of New York City’s 330 public housing developments on the probability of

stop, frisk, and arrest from 2004–2011. We find that the incidence rate ratio for trespass stops

and arrests is more than two times greater in public housing than in the immediate sur-

rounding neighborhoods. We decompose these effects using first differences models and

find that the difference in percent black and Hispanic populations in public housing

compared to the surrounding area predicts the disparity in trespass enforcement and

enforcement of other criminal law violations. The pattern of racially selective enforcement

suggests the potential for systemic violations of the Fourteenth Amendment’s prohibition on

racial discrimination.

I. Introduction

Crime and public housing are closely linked in the popular and political imagination, and

have been so for nearly 50 years (Dunworth & Saiger 1994; Holzman 1996; Popkin 2000;

Fagan et al. 2006). This linkage has been tied to public housing’s racial and socioeconomic

composition (Schill 1993; Marcuse 1995), as well as to its association with drugs (Kotlowitz

1992). The resulting labeling of public housing has led to a set of law enforcement tactics

that place residents under a very close police gaze, justifies efforts to “contain” residents

within the boundaries of public housing sites, and legitimizes the close surveillance of

visitors and neighbors from the surrounding communities who venture into public hous-

ing’s perimeter.

*Address correspondence to Jeffrey Fagan, Isidor and Seville Sulzbacher Professor of Law, Columbia University Law

School, Columbia University, 435 W. 116th St., New York, NY 10027; email: jaf45@columbia.edu. Davies is Associate

Professor, School of Criminology, Simon Fraser University; Carlis is J.D. 2010, Columbia Law School.

The authors are grateful to the NAACP Legal Defense and Education Fund, Inc. for negotiating access to detailed

event data on crime and enforcement and Resident Survey data from the New York City Housing Authority. All

opinions are those of the authors, as is the responsibility for any errors.

bs_bs_banner

Journal of Empirical Legal Studies

Volume 9, Issue 4, 697–728, December 2012

697

Relying on theories of order maintenance and on “hot spots” policing of “high crime

areas” (Skogan & Frydl 2004; Weisburd & Braga 2006), police have adopted tactics that

expose public housing residents to warrantless searches of their homes (Venkatesh 2000;

Pratt v. Chicago Housing Authority 1994), banishment statutes (Virginia v. Hicks 2003; Beckett

& Herbert 2010), and unilateral evictions (Escalera v. New York City Housing Authority 1970;

White 1995). Public housing enforcement strategies in New York, home of the nation’s

largest public housing system, have been based on “stop and frisk” tactics that became the

staple of policing in the early 1990s (Spitzer 1999; Fagan & Davies 2000; Geller & Fagan

2010). In New York, with the nation’s largest public housing network, police have made

hundreds of thousands of Terry stops in and around public housing, resulting in more than

35,000 trespass arrests each year since 2006.

This article looks at one particular crime, trespass, and one particular police tactic,

the vertical patrol, to determine the role race and location play in enforcement. The article

proceeds in three sections. First, we review the history of efforts to control crime in public

housing, including the legal background and tactical details of the trespass enforcement

regime as practiced in New York. Next, we discuss the details and results of our empirical

test for disparate treatment of public housing residents and the racial components of the

trespass enforcement strategy. The evidence shows that the level of trespass enforcement in

public housing cannot be explained by its crime predicates or other social or economic

conditions. We find racial disparities in trespass enforcement that result in disparate

treatment of persons living in public housing based on the racial composition of the site,

particularly the black population in public housing, even after accounting for counterfac-

tuals of crime, socioeconomic conditions, and the amount and intensity of policing. The

results contradict aspects of the political narrative and the core policing theories that are

offered as justifications for intensive trespass enforcement. We conclude with thoughts on

the social and emotional burdens of trespass enforcement that are borne by the residents

who are the intended beneficiaries of the project.

II. Background

A. Crime in Public Housing

Modern public housing in the United States began in the 1930s as a benevolent social

experiment to alleviate slum conditions and benefit the mostly (white) working-class popu-

lations in U.S. cities (Cavanaugh 2005). Public housing expanded after World War II and

most of the new public housing construction consisted of clusters of high-rise towers sited

in neighborhoods already in the midst of significant social and structural change (Schill

1993). Beginning in the 1950s, public housing became a source of social and political

conflict as white working-class families—many of whom benefited from the GI Bill and

access to the burgeoning (and effectively white-only) suburbs—were replaced by poor

nonwhites (Marcuse 1995). This coerced racial heterogeneity led to conflicts in a wide

range of social policy domains such as housing, education (school busing), and welfare

policy (Katz 1989; Massey & Denton 1993; Perlstein 2008).

698 Fagan et al.

As the white population in public housing continued to decline, the aging buildings

began to look more and more like reservations for the city’s poorest residents of color. The

racial threat of concentrated minority populations in public housing signaled “danger” for

older, declining white populations in public housing and in the surrounding neighbor-

hoods. By 1970, public housing had become known, somewhat ominously and unfairly, as

“government ghettos” (Smith 1970).

The popular and political image of public housing hardened further as crime rates

rose in lockstep with cascading drug epidemics. A heroin epidemic began in New York and

other large metropolitan areas in the mid-1960s and continued into the early 1970s (Des

Jarlais & Uppal 1980). Crime rose concurrently as homicides tripled from 1967–1973,

stabilized, and then rose again from 1977–1981 (Roth 2009). Public housing was identified

in these eras as a central location in the distribution of drugs to persons living in the

surrounding communities (Curtis 2003).

Riots in minority neighborhoods in 47 U.S. cities in 1967–1968 reinforced both the

threat of crime and racialized (however inaccurately) its narrative (Kerner Commission

1968). In the 1970s, that perception was fortified by rare but widely publicized episodes of

youth violence (Time Magazine 1977), sequential drug epidemics, and elevated rates of

drug-related violence (Chaiken & Chaiken 1990). With the onset of the crack epidemic in

the mid-1980s, the high-rise towers of large, mostly black-occupied, public housing projects

again came to symbolize drug and crime problems (Austen 2012).

These connections are routinely revisited in the press, which has provided near

constant reminders of the persistence of drug problems in public housing. As Schill (1993)

explained: “Scarcely a day goes by without reports in the media about the . . . problems that

plague some publicly-owned housing developments. Accounts of appalling apartment con-

ditions, corrupt administrators, and innocent bystanders killed by gang warfare are com-

monplace. Negative images of public housing have even found their way into popular

culture.” This perception is reinforced by academic and media portrayals and leads to a

situation where outsiders—those not intimately familiar with the neighborhoods—perceive

public housing as more dangerous than the facts can substantiate (Quillian & Pager 2001;

Sampson & Raudenbush 2004; Carlis 2009). The perception of public housing and its

residents as the focal point of criminality in a neighborhood has justified, as Lazarus (2004)

put it, “the use of every conceivable tool . . . to combat the ever-present criminal element

in . . . housing projects.”

B. Law and Social Control in Public Housing

Beginning with the heroin epidemic in the 1960s, drug law and policy began to specifi-

cally target public housing. Agar and Reisinger (2002) explain that while heroin initially

received little mainstream attention, public scrutiny came toward the end of the decade

“when, due to fear of urban crime and heroin use among American military personnel in

Vietnam, it became defined as a threat.” The conversation focused on public housing

when dealers set up shop in “large apartment buildings . . . where landlords were not

often present” (Curtis 2003). According to Curtis (2003) and other ethnographers of the

crack epidemic (e.g., Hamid 1990; Johnson et al. 1990), drug dealers attempting to avoid

Race and Selective Enforcement in Public Housing 699