Former Prosecutor Bobby Constantino’s piece published in the Atlantic amazingly illustrates two separate problems in the justice system. First, he shows the racist and classist bigotry of the police, who failed to take the efforts and confession of a white man dressed in a suit seriously. Second, once he does get arrested, he shows how the prosecutors and even the judge move to make an example of him.
It is a long piece, and we do not do it justice here by simply paraphrasing and quoting it selectively to illustrate what we see as the critical lessons.
The starting place of Mr. Constantino is as important as any of the other details of his story.
“Ten years ago, when I started my career as an assistant district attorney in the Roxbury neighborhood of Boston, I viewed the American criminal justice system as a vital institution that protected society from dangerous people, “ he writes.” I once prosecuted a man for brutally attacking his wife with a flashlight, and another for sexually assaulting a waitress at a nightclub. I believed in the system for good reason.”
Unfortunately, this is where many people start and end in the criminal justice system. We need to understand as reformers that most people see the system in this light – bad people do bad things and get punished for it and society is protected.
Indeed, there are bad people in this society who commit unthinkable acts of violence, who in fact deserve to get punished and separated from society. The problem from the stand point of the reformer is that this is all many people see. They see the cases that are black and white, clear as day and miss the gray and ambiguity of the system.
As Mr. Constantino writes, “But in between the important cases, I found myself spending most of my time prosecuting people of color for things we white kids did with impunity growing up in the suburbs. As our office handed down arrest records and probation terms for riding dirt bikes in the street, cutting through a neighbor’s yard, hosting loud parties, fighting, or smoking weed – shenanigans that had rarely earned my own classmates anything more than raised eyebrows and scoldings – I often wondered if there was a side of the justice system that we never saw in the suburbs.”
It was on this point that he decided to get arrested in New York City. Or at least he tried to get arrested.
He writes, “On April 29, 2012, I put on a suit and tie and took the No. 3 subway line to the Junius Avenue stop in the Brooklyn neighborhood of Brownsville. At the time, the blocks around this stop were a well-known battleground in the stop-and-frisk wars: Police had stopped 14,000 residents 52,000 times in four years. I figured this frequency would increase my chances of getting to see the system in action, but I faced a significant hurdle: Though I’ve spent years living and working in neighborhoods like Brownsville, as a white professional, the police have never eyed me suspiciously or stopped me for routine questioning. I would have to do something creative to get their attention.”
So he walked around holding “a chipboard graffiti stencil the size of a piece of poster board and two cans of spray paint.” As he noted, “Simply carrying those items qualified as a class B misdemeanor pursuant to New York Penal Law 145.65. If police officers were doing their jobs, they would have no choice but to stop and question me.”
He would attract the attention of a young black man who shouted at him. Three police officers responded to the commotion and asked Mr. Constantino what he was doing.
He writes, “’What does that say?’ the officer interrupted me, incredulously, as the other two gathered around. I held the stencil up for them to read. ‘What are you, some kind of asshole?’ he asked.”
“I stood quietly, wondering whether they would arrest me or write a summons,” he wrote. “The officers grumbled a few choice curse words and then ran down the stairs in pursuit of the young man. Though I was the one clearly breaking a law, they went after him.”
He continued his attempt to get arrested, “I would estimate that I passed more than 200 police officers, some from a distance, some close enough to touch. Though I was conspicuously casing high-profile public targets while holding graffiti instruments, not one of them stopped, frisked, searched, detained, summonsed, or arrested me. I would have to go further.”
So he engaged in graffiti in full view of the surveillance video. He writes, “(I) tagged the words “N.Y.P.D. Get Your Hands Off Me” on a gatepost in red paint. The surveillance video shows me doing this, 20 feet from the police officer manning the gate. I moved closer, within 10 feet of him, and tagged it again. I could see him inside watching video monitors that corresponded to the different cameras.”
“As I moved the can back and forth, a police officer in an Interceptor go-cart saw me, slammed on his brakes, and pulled up to the curb behind me,” he explained. “I looked over my shoulder, made eye contact with him, and resumed. As I waited for him to jump out, grab me, or Tase me, he sped away and hung a left, leaving me standing there alone. I’ve watched the video a dozen times and it’s still hard to believe.”
He continued, “I woke up the next morning and Fox News was reporting that unknown suspects had vandalized City Hall. I went back to the entrance and handed the guard my driver’s license and a letter explaining what I’d done. Several police officers were speaking in hushed tones near the gates, which had been washed clean. I was expecting them to recognize me from eyewitness descriptions and the still shots taken from the surveillance cameras and immediately take me into custody. Instead, the guard politely handed me back my license, explained that I didn’t have an appointment, and turned me away.”
This drama would continue for some time, and he finally attempted to turn himself into the Manhattan Criminal Court.
Finally, “Two Intelligence Unit detectives arrived and testily walked me outside to a waiting unmarked police car. Court papers show that they’d staked out my apartment to arrest me, and that I unwittingly kept eluding them. In one dramatic instance, two officers had tailed me as I walked down Eastern Parkway. I’d entered the subway station at the Brooklyn Museum, unaware that I was being followed. One of the officers had followed me through the turnstiles while another guarded the exit. The report states that the officers then inexplicably lost contact with me. “
But that’s only the start to the story.
He finally got to view the world from the inside of the jail cell – the injuries suffered by inmates at the hands of police, a man denied medication for his diabetes, another denied his attorney.
He writes, “’Sir, do you think this is the right way to treat people, piling them on top of one another, when you have an empty cell open all night?’ I said indignantly, when morning came, pointing at a vacant cell across the hall. ‘I’ve been doing this 22 years,” the officer replied. “So yeah, I do.’”
He writes, “The district attorney’s office, responsible for prosecuting offenders, asked the judge to dismiss my case with three days of community service. This is standard practice for first-time, nonviolent misdemeanor offenders. The judge read through the paperwork and agreed, though he raised the number of community service days to five.”
Just as it appeared this would end okay, Mr. Constantino said he accepted the sentence when the assistant state attorney interrupted.
As he explains, she said, “I’m sorry, I have to withdraw my offer.”
Two months later he returned to the Manhattan Criminal Court at 9 am. At this point, he was out of custody and unfortunately he does not explain how he got to be released, but we should keep in mind that in many cases the defendants end up spending those two months in custody even for minor crimes.
His attorney (again it would have been helpful to understand who his attorney was) explained, “The district attorney’s office is playing hardball. They are seeking a guilty plea against you and requesting jail time if you don’t take it.”
He protested, “But it’s a first-time misdemeanor, that ridiculous—”
His lawyer responded, “I know, but they aren’t budging. Your only chance at avoiding the consequences of a guilty conviction is going to trial.”
“Seven subsequent months of visits offered snaking lines, courtrooms packed with misdemeanor offenders, assistant state attorneys threatening jail time, and the steady issuing of fees, fines, and surcharges,” he writes.
Mr. Constantino explains, “In the end I was found guilty of nine criminal charges. The prosecutor asked for 15 days of community service as punishment. My attorney requested time served. The judge—in an unusual move that showed how much the case bothered him—went over the prosecutor’s head and ordered three years of probation, a $1000 fine, a $250 surcharge, a $50 surcharge, 30 days of community service, and a special condition allowing police and probation officers to enter and search my residence anytime without a warrant.”
He was ordered not to travel, work, or visit outside New York City.
“Wait, what?” he blurted out. “This is true even for nonviolent misdemeanors?”
He was told, “Yes, for everyone. You have to get permission.”
“After the orientation, I went straight to my probation officer and requested permission to spend Christmas with my family in Massachusetts,” he wrote. “I listened in disbelief as she denied my request—I’d worked with probation departments in several states, and I knew that regular family contact has been shown to reduce recidivism. My probation officer also refused to let me go home for Easter and birthdays. After six or seven of these refusals, I complained to a supervisor, citing New York’s evidence-based practices manual, and was assigned to a new probation officer.”
He then wrote, “In May, I requested permission to visit a class of third graders in my old neighborhood. The year before, when I’d set out to march from Boston to Florida to protest the handling of the Trayvon Martin case, the class had joined me for a day, calculated my route, and located places for me to sleep. After one of the students, Martin Richard, was killed in the Boston Marathon bombing, the class invited me to march with them in his memory. Though my new probation officer and I have an excellent relationship, and she has allowed me to visit my family twice, she denied this request.”
This is not a sympathetic cry from Mr. Constantino. He writes, “I do not relate these experiences to gain sympathy. I broke the law knowing there would be consequences. I tell my story because this is the side of the system we didn’t get to see where I grew up. In the wealthy suburbs of Massachusetts, our shared narrative told us that people who didn’t live where we lived, or have what we had, weren’t working as hard as we were. We avoided inner city streets because they were dangerous, and we relied on the police to keep people from those places out of our neighborhoods. Whatever they got, we figured they deserved. My total, unquestioning belief in this narrative was the reason I arrived in Roxbury, fresh out of law school, eager to incarcerate everything in sight.”
There are, of course, a number of questions I have about this, but in most ways this story rings true and it paints a poor picture of both the police end and, of course, the “justice” system end.
—David M. Greenwald reporting
