At The Crossroads May 13, 2021

“We’re Losing a Sense of Accountability”: A Conversation with Richard Aborn

By Greg Berman

Richard Aborn
Richard Aborn

Richard M. Aborn has been a player in the New York City criminal justice world since 1979, when he began his legal career as a prosecutor in the Manhattan District Attorney’s Office. In the 1990s, Aborn served as president of Handgun Control, Inc. (now the Brady Campaign) and the Center to Prevent Handgun Violence, using these platforms to advance gun control legislation. In 2009, he ran unsuccessfully for Manhattan District Attorney.

Aborn currently serves as the president of the Citizens Crime Commission of New York City, a non-partisan, nonprofit organization that works with law enforcement, government agencies, community-based organizations, and academia to improve public safety through innovation. He is a managing partner of the law firm Constantine Cannon.

Much of Aborn’s work over the years has focused on reforming the New York City Police Department. In 1999, he was commissioned to conduct an investigation of the NYPD’s disciplinary system, as well as its response to civilian complaints of misconduct. He was also commissioned to investigate the NYPD’s disciplinary decisions concerning the officers involved in the 1999 fatal shooting of Amadou Diallo. 

As he surveys the current landscape, Aborn is deeply concerned about the rising levels of violence in New York City—and the negative impact of the movement to defund the police.

This At the Crossroads conversation between Aborn and Greg Berman, the Distinguished Fellow of Practice at The Harry Frank Guggenheim Foundation, is framed around two inter-related crises now facing New York City: the urgent need to improve both public safety and police legitimacy. The discussion, which took place in mid-April, has been edited and condensed for clarity.

Greg Berman: We’ve gotten to a point where no one really denies that there is a problem of increased violence in New York. But we’re now dealing with a war of competing narratives about how to explain the increase in violence. I’m hoping that you can help me parse the conflicting stories. You’ve got Mayor Bill de Blasio blaming the courts. You’ve got the NYPD pinning it on too much criminal justice reform. You’ve got the advocacy community saying, “Don’t even suggest that bail legislation was responsible.” You’ve got everyone pointing the finger at COVID. What’s your sense of what’s really going on out there?

The expression that we have a ‘problem’ with violence is really an understatement. I think we are now getting close to a crisis of violence. It is obviously well past a blip.

Richard Aborn: Nothing like starting out with an easy question. First of all, I think the expression that we have a “problem” with violence is really an understatement. I think we are now getting close to a crisis of violence. It is obviously well past a blip. The current trend is exceeding the trend from last year, which was already a sharp reversal of the declines from previous periods. So I think we’re in a crisis moment, and I’m very worried about it.

The truth of the matter is that no one knows what the real cause of the rise in violence is. It probably has multiple causes. In thinking about the rise in crime, one needs to go back to mid-2019, so that’s pre-pandemic. And we begin to see some uptick in serious crimes. Not a sharp rise, but a definite rise. That uptick comes down when we go into lockdown and then goes right back up as we start to come out of lockdown in mid-2020. And then we get these terrible shootings that start, which continue unabated, and in fact are increasing to this day.

The bulk of the conversation about criminal justice in New York City in recent years has been about much-needed reforms—what laws are we getting rid of, how are we reining in police behavior, what cases shouldn’t be prosecuted, where is jail no longer being imposed? All of these reforms are geared towards de-emphasizing the involvement of the criminal justice system. Now a lot of that is very healthy, but what I’m concerned about is whether this de-emphasis on accountability has signaled that we’re taking our foot off the gas on violent crime. If you commit violent crimes, the system should respond.

We have lost some of that, both in reality and in the narrative. And I think that’s one of the things that’s leading to the rise in crime. This goes back to 2018 when we started decriminalizing marijuana, de-emphasizing quality-of-life enforcement, talking about bail reform, closing Rikers…. We did all of these things which sent a message of decreased accountability. If one believes in deterrence theory, in essence, it means you believe that people engage in a risk analysis before they commit crime: “Is there a high likelihood that I’m going to be apprehended and punished if I engage in criminality?”

Two of the people that I’ve talked to so far for this series, Jeffrey Butts and Marlon Peterson, are very dismissive of the idea that people on the street are making the kind of nuanced calculation that you just described. Are people really saying to themselves, “Oh, I wasn’t going to carry a gun, but I just read in the New York Times that bail reform passed, so now I’m going to carry a gun”?

I think that the would-be offending population is actually quite aware of what’s going on. We do know from the research that visible policing can act as a deterrent to crime. If visible policing does act as a deterrent, that reinforces the notion that if people perceive the risk of apprehension, they’re not going to engage in criminality. Why do they perceive the risk of apprehension? Because they see cops out there doing their job. My worry now is that we’re focused strictly on reforms, plenty of which I’ve supported and many of which are very necessary, but some of which go too far. I think we’re losing a sense of accountability.

Is the 2019 bail legislation an example of a reform that goes too far?

Some of the problems with that particular piece of legislation have already been fixed, but I think one of the big mistakes we made was not giving judges discretion to consider dangerousness to the community, as is done in the federal system. I think that part of the bail statute needs to be amended. The bail reform discussion is a classic example of what I’m talking about. Because I think a lot of people perceive that there’s no longer bail for any offense, that you just get arrested and you get released. I think that’s a common understanding.

Violent crime is now reaching a crisis level. I’m using the word “crisis” with precision. People are becoming very alarmed about the rise in violence.

One of the narratives out there is that what we’re seeing is the consequence of police retreating from proactive policing. Do you think that’s a factor in the rise in violence?

Virtually every time we’ve seen an uptick in crime, we hear this argument. And the true answer is that, I don’t know. I don’t know if the cops are pulling back or not. But let’s be honest, the police have been the target of an enormous campaign against them. The New York City Council is trying to make their job harder to do. There’s been a big effort to undermine their funding. Whether that is right or wrong, the police are going to personalize that. They’re human beings. We see record numbers of senior officers leaving the NYPD in droves. That’s a big problem. The experience is going out the door. It’s happening because cops are getting fed up with the amount of abuse they’re taking. 

Parenthetically, I should say that the cops have brought some of this on themselves. The cops need to change their behavior. I have no doubt about that. But at some point, the cops are going to say, “Enough is enough.” I mean, how much abuse can they take? Does that result in a slow down? It could.

You ran for Manhattan District Attorney a few years ago. I’m sure that you are following the current race for DA closely. I’m curious whether you share my sense that crime has not been a major issue in either the DA race or in the mayoral race thus far.

I think that would have been a fair characterization at the beginning of these races. But I think there is a shift taking place.Violent crime is now reaching a crisis level. I’m using the word “crisis” with precision. People are becoming very alarmed about the rise in violence. As we are having this discussion, we are now into our fifth week of a mass shooting having occurred in each of the preceding five weeks. And we’re doing this on the 14th anniversary of the mass shooting at Virginia Tech, where some 32 people were killed. So the violence is very much in the air now, and I think you see a shift taking place among some of the candidates, both at the mayoral level and at the DA level, because people are getting very worried. 

I speak with a lot of the mayoral candidates and their staff and a lot of the DA candidates. Not all, but a lot of them. And I do detect a change in their attitude. I get more and more questions about how to respond to the sharp rise in violence. People are asking whether we have gone too far with reforms, whether we’ve gone too far with cutting back on cops. I’m getting many more of those questions now than I was getting three or four months ago.

Some of the criminal justice system’s most vocal critics don’t believe that we should be turning to police to help curb violence. Do you think that there is a role for the police to play in addressing violence?

One hundred percent. I think they’re the first line of defense. They absolutely have a role. If we’re talking about responding to violent incidents and trying to deter violence, of course they have a role. Do they have the sole role? No. I think the responsibility for curbing violence is a city function and that all of the relevant city agencies need to be involved with that, not just the police. But I do think the police will continue to have the primary role for the foreseeable future. I think we need to think about how we structure the police. I think that needs to undergo significant reform. But I really don’t see the police being taken out of this role.

My read of the research is that the evidence is pretty strong that proactive policing makes a difference. Do you have a different take on the research?

Neighborhoods want cops, they understand the safety that comes from having cops, but they want much more respectful policing to address things like bias and over-aggressiveness.

Not at all. I think the research around visible policing, hot-spot policing, and precision policing all show effectiveness. But I think the second layer to the conversation has to be asking the question: How much harm is done in the execution of what the police do? And I think that’s where we’ve gone astray. The NYPD generally gets pretty high marks for helping with violence, but very low marks on bias questions. And I think that’s the problem we need to address. As I move around different communities, I don’t hear a big cry to get police out of neighborhoods. What I hear is that neighborhoods want cops, they understand the safety that comes from having cops, but they want much more respectful policing to address things like bias and over-aggressiveness.

So let’s pivot and talk a little bit about the challenges of police legitimacy. What are the signs that indicate to you that there is a crisis of legitimacy for police right now?

I’ve been saying now for close to a year that we’re experiencing twin crises. We have a crisis of rising violence and a crisis of legitimacy. That’s a toxic mix. The political manifestation of the crisis of legitimacy is when the New York City Council starts to defund the NYPD. They’re doing that because the police have lost their legitimacy with the public—

Let me just interrupt you there. The political class in our city has shifted to the left, and the movement to reduce the budget of the police is one indication of that. But I have some questions about how much the opinions of the general public have actually shifted on this issue. 

Well, one can only know the answer to that question at the next election—or by very astute polling. But what we do know is that elected officials generally engage in conduct that they believe is reflective of the desires of their constituencies. So at the very least, I think [the Council’s move to reduce the budget of the police] is reflective of where some people are.

Biden coming into office has created space, because the president's been saying ... that we have to engage in reforms, but we're not throwing out the cops while doing it.

I think the position of the public keeps shifting because of the rise in violence. I don’t think that the public dislikes or rejects the police as much as the actions of the City Council would indicate. But I do think there’s deep concern within communities about police legitimacy, and that’s being reflected. Political leadership will respond to the loudest voices. And the loudest voices right now are all about denigrating the ability of the police department to do the work that it needs to do. 

There’s no question that until relatively recently, there’s been a bit of a binary in the public dialogue: Either you’re pro-cop or you’re anti-cop. There hasn’t been the room to say that there are reforms that are very needed while still arguing that there’s a legitimate role for police. I think that window is now opening up, which is healthy. I find reporters asking more balanced questions. And I notice more and more of what they’re printing tends to be a little more balanced. I also think, frankly, that Biden coming into office has created space, because the president’s been saying what many of us have been saying, which is that we have to engage in reforms, but we’re not throwing out the cops while doing it.

One of things that the NYPD is famous for is CompStat, their computerized system that uses data to identify problem areas and promote precinct-level accountability. Is CompStat part of the solution or part of the problem when it comes to the crisis of police legitimacy?

When it was first introduced, CompStat really was a game-changer. When Commissioner [William] Bratton came in, he understood that centralizing power at police headquarters was not an effective way to control crime in the streets. Instead, he sought to empower precinct captains who knew their own crime patterns best and give them control over the deployment of their own resources. CompStat became the way to recognize crime patterns but also to hold police leaders accountable for the extra authority they had been given. So yes, they had been given much more authority, but they were then held accountable for getting results. CompStat became a way of creating a results-driven organization.

CompStat is one of the best ways to drive change, but it’s got to be measuring actual activity that’s taking place. CompStat can be a way of articulating the values of a police agency by articulating what it’s going to measure. In policing, the famous mantra, “inspect what you expect,” reigns supreme.

I've long been a proponent of expanding the metrics so that the police department measures the things that we really want police to do to build legitimacy … And I don't believe that's being done, at least not in any systematic way.

So would your argument be that we need to change what the NYPD is counting?

I’ve been saying that for years. Metrics are very important in policing. Policing agencies are quasi-military organizations. The cops are going to do what you ask them to do. If you measure the number of summonses, arrests, et cetera, that’s what you’re going to get. I’ve long been a proponent of expanding the metrics so that the police department measures the things that we really want police to do to build legitimacy. Things such as positive interactions with the public, the ability to de-escalate conflicts, and the ability to engage in developing joint remedial plans with neighborhood leadership, et cetera, et cetera. We need to develop metrics that allow the department to take into account those sorts of police activities in addition to measuring the more traditional things that the department looks at. And I don’t believe that’s being done, at least not in any systematic way.

You’ve written recently about the differences between having a police force and a police service. If the NYPD were to become a police service, what would the implications be out on the street?

I think it could be huge. At the core of converting from a police force to a police service lie two notions. One, that policing agencies should be much more service-oriented, and secondly, that we need to change the composition of who we are recruiting into the agency. In a police service, in addition to looking for enforcers, we would also recruit people that have a variety of skills that are very relevant to urban policing. We would look to bring in people that understand conflict resolution, that have training in de-escalation, that understand family dynamics. We would bring in people that have mental health backgrounds. We would bring in people that understand urban architecture. We would bring people that have social work backgrounds. We would bring in skills that are much more people-centric, much more focused around resolving issues rather than strictly enforcement. 

The reason that I think that would have a beneficial impact is that we know from data that training around police bias can impact the knowledge that police have towards bias, but that it doesn’t necessarily change behavior. What does change behavior is facilitating positive interaction between different groups, in this case, the police and communities of color. In the model that I’m proposing, you’d have much more interaction in a much more positive way. We know the same thing about aggressiveness: The more you interact with a given group, the less likely you are to be aggressive with that group.

There are long-term issues that the police can't address. They can't fix housing. They can’t fix the schools. But there are short-term issues which the police can be trained to identify and then act as a coordinating agency to bring in the other agencies of government.

The third piece, which is premature to move forward at the moment because there is so much concern about the cops, is that I would also get the police more focused on prevention. Of all the agencies of city government, the police probably have the most consistent and in-depth look at the issues that are driving crime. Why? Because they’re responding to them day in and day out. And they are interfacing with individuals that commit crimes and with the families that those individuals come from, on a daily basis. It wouldn’t be too far-fetched a notion for police to begin exploring the short-term drivers of crime. The causes of crime are embedded in deep, long-term social issues: homelessness, food insecurity—

Pause there for a second. I hear versions of this argument a lot—that what causes crime is poverty. But we’ve just undergone a dramatic transformation over the past 30 years in New York. Public safety has improved dramatically during those years, but we haven’t made significant progress in reducing poverty. Does that complicate the idea that what’s driving criminal behavior is poverty?

I think if you look at where crime is coming from in New York, it tends to be the more impoverished areas. So I believe there’s absolutely some connection [between crime and poverty]. You have youth that have suffered deep trauma because of the violence they have seen. You have schools where there is violence and instability. You have acute joblessness and an acute lack of hope.

I don’t disagree with any of that. But I guess I am skeptical about the notion that we can’t make a meaningful dent in crime unless and until we somehow magically transform society and end racism and poverty and a host of other ills.

That’s good, because if you did believe that, you’d be wrong. Over the last 20 years, we have sustained reductions in crime through some very tough economic conditions in New York. What I’m suggesting is that there are two levels. There are long-term issues that the police can’t address. They can’t fix housing. They can’t fix the schools. But there are short-term issues which the police can be trained to identify and then act as a coordinating agency to bring in the other agencies of government.

Do you worry that the vision you’re articulating can be read as essentially expanding the remit of the police at a moment when many people want to defund the agency?

That’s exactly why I say it’s premature right now. But what we have failed to wrestle with is that no matter how many reforms we do, the cops are still going to be there. We’re not going to disband the police department. I’m sorry, that’s just not going to happen. So we really better focus on how police agencies are structured, because if we don’t do that, I promise you, ten years from now, we’ll be having this exact same conversation.

I’m somewhat optimistic that in the next few years we will see a bunch of criminal justice reforms put in place. I think that we’ll see significant movement toward improving police practice and shrinking the negative footprint of the police. But I guess my concern is that many people will look at this as a failure, because it will read as incremental reform rather than transformative change.

I think there’s another factor that will be part of the calculus about whether we succeed or not and whether your optimism is warranted.It is not happenstance that all the efforts that we’re currently experiencing around police reform have occurred at a moment when crime was at a record low.It’s not a coincidence. What I’m concerned about is that many of the good reforms that we’re putting into place will be lost if violent crime continues unabated. I think you will then see a backlash and we could see many of the reforms reversed. Already the number of people that are getting bail instead of being released on violent offenses is going up.

But given your concern that bail reform went too far, wouldn’t your argument be that this increase is appropriate?

I’m not knocking the increase. If people are getting bail in appropriate violent offenses, I don’t have a problem with that. But people are saying we should get as few people at Rikers as possible. What I’m saying is that you can’t achieve that if violent crime continues to go up. What happens with violent crime over the next three or four years will have a lot to do with setting the pathway forward. 

What’s been lost in the public debate, because we have very short memories, is that, because of the good work of groups like the one you used to lead [the Center for Court Innovation], and numerous other nonprofit organizations, going into 2019, we had record low numbers of arrests in the city of New York, record low numbers of people at Rikers, and record low numbers of state prisoners. All of the data was trending in the right direction. Cooperation between the cops and the community was going up. The neighborhood policing program was catching on. Contrary to all expectations, cops were applying to be in that program. Things were really going in the right direction, and then it just blew up. We’re now a full year into rapidly rising violent crime. Right now, violent crime is up 20% over last year, and last year was up 50% over the previous year.

[Do] people perceive that the criminal justice system writ large—police, prosecution, courts—is responding in the way it should. Or has accountability been lost?

What do you think is the biggest misconception that the public or the media has about the uptick in violence in New York City?

I don’t think they have a misconception. I think they are perceiving the uptick quite accurately. We see crime rising on the subways. We see numerous more cases of shots being fired. The murder rate is rising. People are also correctly perceiving that we’re seeing a record number of illegal guns being seized in the city. Now does that mean there are a record number of illegal guns in the city, or is it just that more guns are being seized? We don’t know. But we do know that 2020 was a record year for gun sales nationwide, and generally as gun sales go up, we see more illegal guns in New York. And 2021 is continuing to see that record rise in the sale of guns. So that’s a big issue. I think people are correctly perceiving all of that. I think the question around correct perception is whether or not people perceive that the criminal justice system writ large—police, prosecution, courts—is responding in the way it should. Or has accountability been lost? I think you’re seeing a rise in the sense that people can act with impunity in New York. And that’s problematic, but that’s something that can be reversed.

I think there’s a social justice analysis, which I largely buy into, that argues that the criminal justice system has been a tool of oppression against Black people in this country, that it has been the sharp end of the stick enforcing an unjust social order. I also think there’s a lot of truth to the argument that there are conditions in the world—poverty, racism, mental illness and such—that contribute to criminal behavior. And then there’s the reality of the criminal justice system, which operates on a case-by-case basis, having to assess the criminal responsibility of each individual defendant. And I feel like those two things are in tension with each other. We are asking those within the criminal justice system to hold individuals to account, but also keep in the back of their mind these larger systemic issues. How should the history of racism in this country—or the fact that, through no fault of their own, some people are poorly educated or come from dysfunctional families—how should that influence the individual cop’s behavior on the street, the individual prosecutor’s decision whether to bring a case, and the individual judge’s decision about whether to detain a defendant?

You know, I actually don’t think they’re in tension. I believe that a system that is perceived as being just, transparent, and legitimate is a system that will be more highly respected and will encourage greater compliance with the law. I think when the system is perceived as being unfair and unjust, you see increased levels of criminality.

The more we can filter out racism in policing and the criminal justice system, the fairer the system will be both in reality and in perception. The more we can inject legitimacy and transparency into the system, the more the system will be accepted.

You’ve talked about the need for people to understand that they can’t act with impunity. But there are many who believe that any administration of punishment is essentially racist. Maybe I’m caricaturing this argument slightly. But only slightly. I do think there are many people who feel that if the system administers a punishment, that it’s doing a moral wrong.

If that’s what they’re really saying, then I sharply disagree. I understand the notion that a history of racism and injustice undermines the moral integrity of the system. The challenge is to address racism and restore justice. I think it’s very important for people to understand that bad acts have consequences; accountability is important. I think that’s a fundamental precept in keeping order in a society. Consequences must be proportional, swift, evenly applied, and hopefully remedial. Prison should be a very last resort, reserved only for those where necessary. Consequences must be administered in a fair and just manner, without regard to race. The more we can filter out racism in policing and the criminal justice system, the fairer the system will be both in reality and in perception. The more we can inject legitimacy and transparency into the system, the more the system will be accepted. That in turn makes the individual administration of justice easier to do. I think the effort to instill justice, legitimacy, and transparency into the system reinforces the ability to treat individual cases individually and fairly. The justice system really should be about individual rights and individual responsibility. Decisions should be made on an individual basis. If we’re starting to make those decisions because of fear of political repercussions or out of a desire to be politically correct, then we’re undermining fundamental justice.

Does how government discusses public safety impact public safety?

One last question: Are there areas where you think we need more information, more data, more research? If you had an army of criminologists at your disposal, where would you point them?

We started this conversation by talking about competing narratives. I’m fascinated with the intersection between narrative and crime. I think one of the interesting areas for someone to do some really good research is to start exploring more precisely the connections between narrative and rises or falls in crime. Put slightly differently, does how government discusses public safety impact public safety? For instance, in a time of heightened focus on reform and curtailing police activity, if government rhetoric is exclusively around reform and the ills being addressed by the reforms, and neglects to also discuss that, simultaneously, government is keeping a sharp focus on violent crime, does this negatively impact public safety? In my view, we’ve lost some of the foundations of deterrence, but the research around deterrence is mixed. Deterrence is based on a high likelihood of apprehension, i.e., the police doing their job, the certainty of prosecution, the administration of firm and swift justice. Not an emphasis on severity, but an emphasis on swiftness and certainty. We’ve lost some of that. What impact does that have on crime? I’d like to know the answer. If the way we narrate criminal justice policy has an impact on criminal behavior, we really need to understand that, and we need to make sure that we create narratives that have the highest likelihood of both serving justice and increasing public safety.

Greg Berman is the Distinguished Fellow of Practice at The Harry Frank Guggenheim Foundation. He previously served as the executive director of the Center for Court Innovation for 18 years. His most recent book is Start Here: A Road Map to Reducing Mass Incarceration (The New Press).

Views expressed are the participants’ own and not necessarily those of The Harry Frank Guggenheim Foundation.

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