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The Supreme Court’s opinion this past term in Virginia v. Hicks might not be a landmark decision. In the case, the Court upheld against a First Amendment challenge to a statute allowing the arrest of individuals on streets near public housing projects which were “privatized” by city officials and conveyed to the state. But the case is still noteworthy: it highlights two of the nation’s most significant public policy debacles: public housing and drug prohibition. Kevin Hicks was charged with trespass after receiving a written warning from housing officials that he was not permitted near a city housing project. Hicks, who had twice been arrested for trespassing at the same project, convinced the Virginia State Supreme Court that the statute was overbroad, vague, and granted excessive discretionary powers to housing officials to decide who would be denied access to authority streets, grounds and buildings. The U.S. Supreme Court unanimously reversed the Virginia high court decision finding as to the First Amendment’s overbreadth doctrine (and also remanded the case back to the Virginia courts with a suggestion that the statute might still be challenged on other grounds such as vagueness). The high court’s decision seems to give further ammunition to housing authority managers who are trying to control drug sales on their properties. In a previous case decided just last year, Department of Housing and Urban Development v. Rucker, the Court in an 8-0 decision held that even innocent public housing tenants could be evicted, should someone with whom they reside be convicted of a drug crime. The privatization of streets at issue in Hicks is viewed as a relatively new strategy, and other cities have embraced it. The policy is supposed to equip the police with another enforcement tool, in addition to the long established practice of arresting unauthorized parties who enter housing authority buildings. Some have complained that, taken together, these trespassing laws impair tenants’ rights to freely associate with people they’ve invited to visit them in their homes. Some civil libertarians have also expressed doubt as to whether a city’s decree along with the posting of signs is sufficient to make a public street into a private one. PROBLEMS NOT NEW Of course, this enforcement tool raises genuine concerns about how far lawmakers will go in allowing law enforcement to wage the campaign against drugs, when the anti-drug effort is by most accounts making little progress, most especially in and near many of the nation’s public housing complexes. Hicks provides a fresh reminder that law is no science. After all, scientists tend to abandon ideas once they are discredited. Local, state, and congressional lawmakers, on the other hand, seem to prodigiously reproduce and repackage failed solutions to “new” problems that are really not new at all. In fact, when it comes to criminal justice, there are few new problems and fewer new solutions. To be sure, at first glance many ideas — such as privatizing public streets — might seem novel. But on closer inspection, they simply resurrect old ghosts. The trespass law at issue in Hicks, for instance, dredges up the much-abused loitering laws that were all but laid to rest by the Supreme Court in Papachristou v. Jacksonville. There, the Court struck down an ordinance that appeared to apply to just about everybody. The law “deemed vagrants” subject to 90 days’ imprisonment, a $500 fine, or both, groups encompassing (but not limited to) “Rogues and vagabonds, or dissolute persons who go about begging, common gamblers, persons who use juggling or unlawful games or plays, common drunkards, common night walkers, thieves, pilferers or pickpockets.” And the list went on. The laws at issue in both Papachristou and in Hicks can be used to sweep up potentially anyone. The effect is the same. The more that drug prohibition seems to fail, the more bizarre the laws enacted to accomplish it seem to be. At the local level, drug penalties can be truly draconian. Federal arrestees face life in prison for possessing relatively small amounts of narcotics. Federal and state lawmakers have enacted a series of post-conviction penalties that in some cases extend only to those convicted of drug offenses. A person convicted of a drug offense may be banned for life from receiving food stamps and public assistance, student financial aid, stricken from the voter rolls (this has happened to an estimated 13 percent of African-American males), deported, or denied admission to or be evicted from public housing. As support for initiatives such as legalizing medical marijuana indicate, the nation is just starting to realize that something is a little screwy with our predilection for using punitive approaches to address drug abuse, which is essentially a mental health issue. But we have not even started to grapple with the other colossal failure before the Supreme Court in Hicks, an issue that is perhaps the nations longest-running failed policy: public housing. Nearly a half-century ago, upon returning from his post as a correspondent in the former Soviet Union, New York Times columnist Harrison Salisbury was shocked that the nation’s public housing appeared to him little better than the slum areas of Moscow. He wrote that the projects “spawn teenage gangs. They incubate crime. They are fiendishly contrived institutions for the debasing of family and community life to the lowest possible mean. They are worse than anything George Orwell ever conceived.” Indeed, Orwell would not have had to tax his imagination to look into the future to see where public housing was going. It was a disaster in 1958 when Salisbury wrote, it was a disaster in 1984, and it is still a disaster today. NEGLECTING PUBLIC HOUSING The nation’s policy on housing the poor is a sort of malignant neglect. Political debates on them, when they occur, revolve around options that effectively punish their occupants. Housing projects, perhaps second only to prisons, are viewed by many Americans as hyper-dangerous, dark, dank places that are beyond the pale of truly confronting. The New York City Police Department regards even the term “project” as pejorative, and discourages its employees from using it. This is not to say that there aren’t entire housing complexes that work. To be sure there are. And even in a troubled complex there is often one building or several floors where the residents are assertive and insist that services be provided. But those are the exceptions. And the courts have provided little help. Just as judges long adhered to a hands-off doctrine that dictated staying out of the affairs of prison managers, the Supreme Court in both Harris and Rucker seems willing to countenance, especially in public housing, techniques that would never be tolerated in middle or upper class areas. The combined effect of having no real housing policy and a bad drug policy is the isolation and stigmatization of housing residents who are alienated from the broader society and from one another, as the drug war is fought from the bottom up instead of against suppliers. Statutes like the one in Hicks turn housing projects into garrisons and undermine any chance of fostering a sense of community, which is the best crime prevention program of all. A requirement to ensuring public safety is maintaining a relationship of trust and respect between the police and residents, young and old. If people have a sense of fealty toward the government, the legal system, and the police, then it is that much more likely a given place will feel safe and be secure. Insensitive law enforcement, which targets everyone in its wake, does not in the long run make a place safer, much less better. (Ironically, this is a message our government is preaching in, of all places, Iraq.) I am willing to bet that most police chiefs are not anxious to resort to the tactics used in Hicks. They know the fragile nature of the relationship they have with poor people, and they are well aware that there is an ongoing economic meltdown in poor communities that no amount of nuisance abatement is going to address. Wise police chiefs are also careful about using laws that could conceivably criminalize and socially disable large numbers of people in the ghetto. THE POWERS THEY HAVE Before law enforcement is vested with new powers to arrest people for trespassing on newly privatized streets, it seems imperative that they explain what they’ve been doing with the powers they already have. If someone like Hicks has been previously convicted of a crime in that housing project, could not a condition of probation (or parole) be for him to stay away from that place? Wouldn’t it be sufficient to focus on Kevin Hicks alone, rather than create a sweeping new law that can potentially criminalize so many people? If drug sales are the problem, why are police not making “buy and bust” arrests? And if the murder rate in Richmond is alarming — an argument advanced in support of the policy upheld in Hicks — shouldn’t there be more focus on how well the police department responds to murder? Then again, maybe you are looking for simple answers to the complex problems of public housing and substance abuse. If so, you will be comforted to know that legislators seem to have them in abundant supply. We are expanding criminal law almost daily to cover ever-increasing numbers of people, especially the poor and the powerless. In circumstances where a big vision is needed, where thoughtful planning is critical, and boldness is essential, we can at least point to something to make us all rest easier: Kevin Hicks, private street trespasser, has been brought to justice. Eugene O’Donnell, a former New York City police officer and prosecutor, is assistant professor of law and police science at the John Jay College of Criminal Justice

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