Utilitarian calculations justify the removal of racial minorities; historically proven by New York’s racial profiling policies

Utilitarian’s will consider everyone equally; this does not mean that they will treat everyone equally. Suppose that there is a racial minority in a society. This minority does not harm anyone else in the society, nor does it do anything particularly good either. However, the other citizens, who make up the majority, have prejudices against this minority, and consider their presence very disagreeable, and proposals are put forward to remove this minority. (Woolridge 2019, p. 138) Woolridge is not clear on what would be involved in “removing” the minority but where Woolridge falls short, scholar Noah Levin provides insight to what it could mean. “The removal of the minority need not involve murder, although it could. It might involve, for example,6 removing them from society by forcing them to leave the society” (Levin 2019, p. 139). Again, this clearly raises moral and ethical questions. Bentham is also known for his views on criminology and on policing, the topic of this thesis, and indeed is seen as one of the main proponents of modern policing. Writing at a time of high crime in the United Kingdom stemming from urbanization and social upheaval, and considering the reliance at the time on coercive methods employed by the military and local and private forces, Bentham felt that the public good (and protection fo property) would be better served by establishing a civilian-controlled and state funded police force that would focus on methods of “preventative” rather than punitive policing (Cote 2021; Jacques and Schofield 2021). Preventative policing could be defined by three components: First is situational crime prevention, [in which police] broadly distribute information to the public so they can avoid being victims of crime. The second encompasses what is now referred to as “intelligence-led” policing and “predictive policing”, where police gather and process information to be used in proactive interventions. Third and arguably the most important to Bentham was the deterrent effect of successful reactive policing (i.e., the detection and capture of offenders). (Jacques and Schoefield 2021, p. 215). “Broken Windows” Theory as adopted by New York City in the 1990s was a variation of utilitarian-based policing, but as will be described, rather than situational crime prevention, became a channel for “zero policing” which harmed minorities and did little to contribute to the overall public good.7 Broken Windows Theory Broken Windows Theory, as described in 1982 by James Wilson and George Kelling, extrapolated on earlier research by Stanford University psychologist Philip Zimbardo. This theory in essence posits that no matter how rich or poor a neighborhood, one broken window would soon lead to many more windows being broken: “If the first broken window in a building is not repaired, the people who like breaking windows will assume that no one cares about the building and more windows will be broken. Soon the building will have no windows” (Wilson and Kelling, 1982, para. 22). The idea here is that serious crime will evolve from minor infractions. However, there is no foundational basis that indicates that minor infractions directly cause serious crime. In a critique of punitive preventative justice, Columbia law professor Bernard Harcourt concludes that, Taken together, the wealth of research provides no support for a simple disorder-crime relationship as hypothesized by Wilson and Kelling in their broken-windows theory. What I have come to believe is that the broken windows theory is really window dressing, and it masks or hides more profound processes of real estate development and wealth redistribution. (Harcourt 2012, p. 14) On that note, attorney, activist, and writer Andrea Ritchie makes a similar observation, recognizing that “Broken Windows” policing is nearly identical to the ways in which vagrancy laws were implemented in the past. “These laws were explicitly created to criminalize and control the movements of people deemed undesirable throughout U.S. history: Indigenous peoples, formerly enslaved people of African descent, immigrants, women, and homeless and8 poor people” (Ritchie 2016, para. 13). In his 2015 defense of “Broken Windows,” Kelling himself directly acknowledged the lineage, stating in reference to his 1982 essay, that …the Black Codes’ vague loitering and vagrancy laws passed in the South immediately after the Civil War were of special concern for us (police.) Under these laws police arrested African Americans for minor offenses and, when they could not pay the fines, courts committed them to involuntary labor on farms, in a sense, extending slavery for many into the 20th century. (Kelling, 2015, para. 7) As will be discussed in the following sections, after the Broken Windows theory was applied in New York City, there were similar analyses of the impact on poor people, Black people, and people of color. Nevertheless, the New York City experience was borrowed by policy makers in various parts of the world, based on the city’s success in reducing crime. In Section 4, the New York City case is elaborated further, followed by the application of a similar theory in New South Wales (NSW), Australia. It should be noted that the largest city in NSW is Sydney where more than half of NSW’s 8.1 million people (2020) live. Policies applied in NSW were particularly relevant to this large city. 4. Case Studies: New York City and New South Wales New York City

During the 1980s and into the early 1990s, New York City was experiencing very high crime rates. During this time residents were leaving at a high rate, government mismanagement caused near bankruptcy of the city, and the introduction of crack-cocaine had devastating impact on communities causing a wave of drug abuse and violence. The city was in turmoil and a9 solution was desperately needed. This political climate provided a perfect opportunity to redesign New York City policies and strengthen the powers of police, and frame it as a solution to the heinous reality that was going on outside. Former mayor Rudolph Giuliani framed Broken Windows Policing as the only viable option to fix New York City’s crime problem by appealing to the public fear. “Under the leadership of former Republican Mayor Rudolph Giuliani and bolstered by right-wing media like the New York Post and right-wing think tanks like the Manhattan Institute, the city put Kelling and Wilson’s theories into practice, with an internal police memorandum” (Ritchie 2016, para.6). Based on the common political tactic of fear mongering, this solution was implemented in areas known as “hot spots” throughout New York City immediately. In 2003, a report from the National Bureau of Economic Research found that under the Broken Windows policy violent crime declined by more than 56 percent in New York City. More specifically, the research concluded: The police measure that most consistently reduces crime is the arrest rate. Felony arrest rates (except for motor vehicle thefts) rose 50 to 70 percent in the 1990s. When arrests of burglars increased 10 percent, the number of burglaries fell 2.7 to 3.2 percent. When the arrest rate of robbers rose 10 percent, the number of robberies fell 5.7 to 5.9 percent. (Francis 2003, para. 7) Figure 1 below shows that the “Broken Windows” policy was successful in reducing crime.10 Figure 1 Crime Reduction in New York City under the Broken Windows Policy Source: T. Chronopoulos. (2017). Broken Windows Policing and the orderly city: New York since the late twentieth century New York: The Gotham Center for New York City History, p.2. It is important to note while analyzing this data that these are merely snapshots into very specific times and spaces, with other varying factors also contributing to the decline in crime in New York City. In particular, New York City experienced economic growth and development during the implementation of Broken Windows. But Holtzman (2016) points out: From the start broken windows has been inseparable from policies to promote economic development and gentrification. The policy has not only accelerated the criminalization of people of color, but also worked hand in hand with pro-development schemes that make more and more New York City neighborhoods un-affordable. (2016: para. 12) He is acknowledging the inseparable connection between the development of a city and the degradation of a minority group. Sofia Kwon substantiates Holtzman’s claim by stating: “history11 indicates that gentrification and real estate development are not simply the effect of over- policing but a motivator, with the real estate industry working hand-in-hand with police to displace Black residents and accumulate wealth for its stakeholders” (Kwon 2020, para. 17). Many scholars and policy makers have noted the disproportionate impact of zero tolerance policing on minority groups. Broken Windows had a major impact on the Black community in New York City. Harcourt and Ludwig found that broken windows, albeit indirectly, led to a disproportionate number of drug arrests for blacks. The New Republic reported that from 1993 (the year that Broken Windows took hold) to 2000, misdemeanor arrests for smoking marijuana in public jumped from 10 per year to 644. At only 25% of the city’s population, blacks accounted for over half of the arrests. (Sternbenz 2014, para. 12)