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The Brooklyn Rail

FEB 2012

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FEB 2012 Issue

Fear of the First Amendment

Over the past decade the issue of whether former prisoners should regain their full rights of citizenship has moved to the forefront of criminal justice debates. “Jarvious Cotton cannot vote,” reads the opening sentence of Michelle Alexander’s best-selling work The New Jim Crow. Cotton is on parole in Louisiana, one of many states that deny former prisoners the right to vote. Somewhat unexpectedly, the issue of felon disenfranchisement also surfaced briefly in one of the Republican debates in South Carolina, with Rick Santorum peppering Mitt Romney with questions about the latter’s position. Whether there will be resolution of the problem is unclear, but at least it has become part of the national discussion.

Photo by Zachary Garlitos.

Closer to home, the expansion of the criminal justice system is quietly threatening other rights of citizenship, namely those guaranteed by the First Amendment. As seen most recently in the Occupy protests, the overzealous approach of the N.Y.P.D. at any and all demonstrations greatly enhances the possibility of arrests. And for those caught up in the criminal justice system in any way—whether they face a bench warrant, have an arrest record, or are on probation or parole—staying away from protest events is a safer bet. The degree to which this results in a de facto constraint on the First Amendment is an open question.

Sean Barry, director of VOCAL-NY, says that the “fear of police contact is a major problem for us.” VOCAL (Voices of Community Advocates & Leaders) mobilizes low-income city residents to protest against the drug war and other aspects of the criminal justice system, and its members include many people with criminal records. As Barry argues, “the perceived risk in going to a rally creates a chilling effect,” keeping many people away from such events. “Our members on parole are most concerned,” he adds.

That fear also extends to those who don’t have criminal records, but who have had plenty of encounters with police. “Of course there’s apprehension in the black and Latino communities about going to protests,” observes Malik Rahsaan, who started Occupy the Hood this past fall. “It’s a valid fear, and I would never try to talk anyone out of it.” Rahsaan, 39, grew up in Jamaica, Queens, and his father was an N.Y.P.D. officer. “I have dealt with the police all my life, so I know how to work with them. And others from my community who join protests bring that experience as well.” Still, even the most street savvy protester won’t always know how to elude the N.Y.P.D.’s orange nets.

Certainly there are many reasons why people do not attend protests, making it difficult to provide statistical support that fear of arrest is a leading cause. But consider the impact of marijuana arrests in the city, of which there were more than 50,000 in both 2010 and 2011. As Queens College professor Harry Levine has explained, many of these result from police coercion during “stop and frisk” encounters. Generally, most result in an adjournment in contemplation of dismissal (ACD), which means that if the person avoids arrest for six months, the charge will be dropped. During this time period, even if they want to attend protests, people in such circumstances now face an added danger in doing so.

Brooklyn College professor Alex Vitale, who has served as a National Lawyers Guild observer at many protests over the past decade, has seen firsthand the fear generated by the N.Y.P.D.’s approach to political demonstrations. That fear, he says, is held disproportionately by people of color. For Vitale, the obstacle to First Amendment rights is thus another argument against the “impact of N.Y.P.D. policies on minority communities”; moreover, it’s another reason why the N.Y.P.D. needs to scale back its approach to protests. While those are longterm goals, a more concrete demand, says Vitale, is for “real expunging of criminal records.”

Barry and the folks at VOCAL agree. And last September, in response to Ray Kelly’s memo aimed at discouraging coercive N.Y.P.D. marijuana arrests, Assemblyman Hakeem Jeffries announced that he would lead legislative efforts calling for expungement of marijuana arrest records; among other benefits, wiping someone’s record clean would reduce people’s fear of encountering police in public settings. It’s time for others to take up the call as well. We all know that an arrest record can hurt an individual’s chances for employment as well as access to public benefits. Yet it can also curtail a person’s ability to exercise his or her rights to protest on behalf of those very same issues. It’s time for the First Amendment to be included in the discussion.


The Brooklyn Rail

FEB 2012

All Issues