By Victoria Law
August 27th, 2019
Robert McCoy has a 78-page rap sheet that includes 80 arrests and five prison sentences. He was paroled to New York City in June 2018 after spending over 11 years in prison. Determined to stop the cycle of arrests and incarcerations stemming from his past drug use, he found both a job and a bed in a homeless shelter. But, three weeks into his job as a dishwasher, he dropped a piece of machinery onto his foot, leaving him unable to work.
Two months later, he was in midtown Manhattan when he saw a backpack by a garbage can. “It looked like it had been abandoned,” he told Truthout. He picked up the bag and began looking inside. Less than a minute later, two officers arrested him on charges of stealing the bag. He had been caught in Operation Lucky Bag, a police sting in which seemingly abandoned bags are planted and those who pick them up are arrested. The Manhattan district attorney’s office has said that it is selective about the cases it chooses to prosecute, but McCoy, with his extensive rap sheet, seemed to fit their criteria. In court, bail was set at $500; unable to come up with that amount, McCoy was sent to Rikers Island, the city’s notorious island-jail complex. There, he connected with the nonprofit Brooklyn Community Bail Fund, which bailed him out less than a week later.
But the threat of incarceration still loomed. Being arrested is a parole violation leading to a possible bus ride back to prison. In February 2019, McCoy agreed to plead guilty to misdemeanor charges in exchange for 15 days in jail. He served 90 additional days in jail for the parole violation.
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McCoy’s pattern of repeated incarcerations — with each one making a future repeat more likely — is not uncommon. Across the nation, police make nearly 10.6 million arrests each year, and at least 4.9 million people are arrested and sent to jail annually. Of those millions, at least one of every four has been jailed more than once in the same year, according to a new report by the Prison Policy Initiative entitled “Arrest, Release, Repeat,” which documents who is most frequently targeted and arrested.
People who are arrested multiple times are more likely to be poor, unemployed and have less than a high school education. Race and racial profiling remain a prominent factor in whom the police target for arrest. Black people make up 42 percent of people who have been jailed multiple times over the past year, though they comprise 13 percent of the nation’s overall population.
In New York City, 800 People Accounted for 18,713 Jail Admissions
As many as 428,000 people (or nearly 9 percent of people sent to jail nationwide) are in and out of jail at least three times over the course of one year. Public health officials often refer to them as “frequent utilizers,” or people who cycle through the local jail, emergency room and homeless shelter, none of which address their long-term health and other needs. Thirty-six percent of frequent utilizers had used the emergency room two or more times in the past year; in comparison, 11 percent of people with no arrests have had multiple emergency room visits.
These frequent arrests aren’t because the people involved threaten public safety. Eighty-eight percent of people who had been arrested multiple times had not been arrested for a serious violent offense, such as aggravated assault, murder, rape or manslaughter. Instead, they are arrested and sent to jail on drug charges, driving under the influence, theft, drunkenness, violating a court order or the conditions of probation or parole, or a traffic violation. In New York City, the 800 people with the most arrests accounted for 18,713 jail admissions.
In New York City, the 800 people with the most arrests accounted for 18,713 jail admissions between 2008 and 2013. Each of these individuals averaged a median of 21 incarcerations with an average jail stay of 11 days. These frequent incarcerations cost the city $129 million over five years.
New York City jail admissions have been dropping. In 2015, the city’s jail system admitted 64,458 people (a sharp decline from the 130,700 admissions in 1996). Between 2018 and 2019, that number dropped even further to 39,420. The continuing decrease has led city officials to seriously consider the possibility of closing the Rikers Island jail and opening four smaller jails in its place. Arrests have also decreased from 87,567 in 2009 to 51,889 in 2018.
Jackie Caruana, senior staff attorney at Brooklyn Defender Services, notes that what remains unchanged are the ways in which race, income, housing status and substance use remain major factors in who is targeted for multiple arrests.
In Brooklyn, one of New York City’s five boroughs, defense attorneys are still seeing police target certain populations for arrest. These include people at methadone clinics and shelters, people with substance use issues, and people living in homeless shelters, who are then confined in central booking for 24 to 72 hours pending arraignment. These arrests also disrupt their medical and mental health treatment.
Police also target people who live in or near public housing complexes. It often doesn’t matter if the person lives in the building that they are standing or sitting in front of. If the police tell them to move and they refuse, or even argue that they live in that building, they can be arrested for obstruction of justice or disorderly conduct, leading to 24 to 72 hours in central booking before being brought to arraignment court. Most of the people whom Caruana defends from these charges are people of color.
Their arrests also have housing-related consequences. The New York City Housing Authority (NYCHA) conducts criminal background checks on anyone living in its housing; the agency is also alerted when an arrest happens on its property, which can trigger eviction proceedings against that person. People convicted of misdemeanors can be barred from living in NYCHA housing for three to four years; people with felony convictions are barred for five to six years. If a family member is convicted and still living in that household, housing authorities can begin eviction proceedings. “To avoid that, the person who got arrested would have to move out,” said Caruana.
“There are people that we have paid bail for multiple times,” says Justina Walker of the Brooklyn Community Bail Fund, which posts bails for people charged with misdemeanors. “I see people who have 40, 60, 80, 100 arrests,” she told Truthout. “A very small portion of the population — Black, Brown, poor, queer and trans folks — are targeted.” Frequent charges are petit larceny, possession and trespassing. Despite prosecutorial promises not to prosecute turnstile jumping, Walker still sees people charged with fare evasion, but now in conjunction with other misdemeanors, such as drug possession, trespassing or obstruction of governmental administration. And, Walker adds, “there are a number of clients who can’t get to court because they can’t afford the $2.75.” This lack of transportation leads to warrants and re-arrests for missing court dates.
“What Started That Case Is My Past Record”
Arrests have lasting consequences. Even if people are not convicted, the fact that they were arrested remains on their records. While the arrests are not visible on their public rap sheets, they can be — and are — seen by prosecutors and judges. For people who are repeatedly targeted and arrested by police, this results in lengthy arrest records that can influence prosecutors and judges during future court hearings. That’s been the experience of Dwayne Lee.
Lee wouldn’t be characterized as a frequent utilizer. He has a home and a family, isn’t in and out of the emergency room, and hasn’t been arrested multiple times in the past year. But he is also Black and, in the 1980s, was living in Flatbush, a predominantly Black and West Indian neighborhood in Brooklyn that was the target of weekly police sweeps. His father, a shop steward at the Carpenters’ Union, had arranged for Lee to become a carpenter’s apprentice. “He did everything he could to take me off the streets, but I had to walk the streets to go home,” Lee told Truthout. “I see people who have 40, 60, 80, 100 arrests.”
Lee’s first arrest occurred in 1986. Coming home from work, the 19-year-old was caught in a police sweep and charged with drug possession. Though he had no drugs, he also had no knowledge of the law; he pled guilty and was sentenced to six months at Rikers. Two months after his release, he was caught in another sweep; he pled guilty again and this time spent one-and-a-half years in prison. When he came home, he was caught in yet another sweep. Because of his previous arrests and convictions, he was sentenced to two to four years in prison.
Two decades later, in 2015, Lee stopped at a red light in Brooklyn when police approached his vehicle. They said that he’d been swerving while driving and proceeded to search his vehicle. They found a bottle of Percocet, which Lee had been prescribed for back and knee injuries from a 2010 car accident. The bottle contained a six-month supply, about 120 pills, an amount that police believed he was selling. They arrested him on charges of criminal diversion of a prescribed medicine.
In court, his past record came back to haunt him and Lee found himself facing first degree criminal possession of controlled substances, an A-1 felony, with a sentence of 8 to 20 years in prison. Based on his past record, Lee said that prosecutors had “the assumption that I’d been selling drugs for years.” Lee spent one-and-a-half years at Rikers before a settlement from a previous accident enabled him to post the $5,000 bail demanded by the court. He spent another two years fighting the charges and was finally acquitted in February 2019.
That wasn’t the last time his past record has disrupted his life — and the disruptions extend beyond criminal arrests. Lee is currently fighting a child welfare case that keeps him separated from his three youngest children, ages nine, 12 and 15. Lee has asked that the details not be published, both because it’s an open case and to protect his children’s privacy, but does draw the connection between past arrests and the current case. Instead of spending the last weeks of summer taking his children to the beach or barbecuing in the park, Lee is now fighting against the child welfare charges that now keep him from his children. “What started that case and made them believe they can prosecute me is my past record,” he said.
Similar Patterns Play Out in New Jersey, Massachusetts and Connecticut
“I’m sure there are thousands across the country that go through the same scenario based on their record,” Lee reflected.
Data may not be connected nationally, but what is known seems to bolster his observation. In Camden, New Jersey, 5 percent of adults accounted for 25 percent of all arrests over a five-year period.
In Boston, Operation Clean Sweep made headlines in August when police raided the transient community in the city’s South End, trashed belongings that included wheelchairs, and arrested at least 34 people on old warrants. But even outside these sweeps, people who are homeless and have co-occurring substance use and mental health disorders are targets for repeated arrests, says Olivia Dubois, a social worker who connects people who are arrested with social services. Arresting people who are engaged in substance use increases their risk of overdosing once they’re released, she noted.
Brett Davidson, co-director of the Connecticut Bail Fund, notes that police in New Haven target specific people for multiple arrests. Often, those targeted are caught in a revolving door of hospitalization, jail and homelessness. Since opening in 2016, the Fund has bailed out 294 people; it has bailed eight people out multiple times. One client, for whom the fund posted bail three times, has been homeless for his entire adult life and, because of his increased visibility, has a long rap sheet. Another man became homeless after a divorce several years ago. Since then, he too has been arrested multiple times, bailed out three times, and currently has 11 pending cases. Most are for low-level charges including three separate cases for disorderly conduct, littering, trespassing, and carrying a knife.
Harvard student Alex Albright found that 34,892 people made up 50,247 jail admissions in Connecticut between 2016 and 2019. The top three charges, making up nearly one-third of jail admissions, were probation violation, violation of a protective order, and failure to appear in court.
The city of New Haven, with a population of roughly 130,400, counts a homeless population of 529. Judges and court officials believe that sending or keeping people in jail will enable them to access health care and other resources, according to Davidson. Connecticut also has a Jail Re-Interview Program, in which jail staff re-interview those in custody and determine whether to send them to a treatment program. But, notes Davidson, it often takes six to nine months for a person to get into that program; during that time, they remain in jail.
“A lot of the interventions we’re seeing are at the point of police contact and arrest,” noted policy analyst Alexi Jones, the Prison Policy Initiative report’s co-author. She points to the need for front-end solutions so that people can avoid arrest, incarceration and the myriad collateral consequences. Among the solutions that Jones recommends are access to health services, community-based treatment for mental health and substance use disorders, stable housing, and re-classifying misdemeanors into non-jailable offenses. “A lot of this cycling in and out of jails can be prevented in the first place by investing in communities,” Jones said.