Despite facing “significant constitutional hurdles,” Charlotte-Mecklenburg police officials want to move forward with a proposal to create areas of the city that would be off-limits to people who have been arrested.
The Charlotte-Mecklenburg Police Department hopes to write an ordinance for the City Council’s public safety committee, which could review the “public safety zones” later this year.
The safety zones would be modeled after prostitution-free zones created by the city a decade ago.
Here is how they would work: If CMPD found an area where there was an uptick in crime, the police chief could declare it a safety zone. Council members wouldn’t have to approve the zone.
If a person is arrested inside the zone, that person would be prohibited from returning. Within five days, the person could appeal the prohibition, on grounds such as the person is caring for children inside the area or the person lives or works there.
If the person pleads guilty or is convicted, he/she would be barred from the area for up to a year. If the person is found not guilty or if the case is dismissed for any reason, the person can return.
“It’s still up for discussion,” said CMPD Attorney Mark Newbold, about the proposed ordinance.
At a safety committee meeting last week, CMPD discussed a study about the prostitution-free zone that was created in 2005. One of the areas targeted was the Camp Greene neighborhood west of uptown.
In the two years before the ordinance was passed, CMPD received 534 calls for service inside the areas that would become part of the prostitution-free zones.
In the two years after the ordinance was passed, the number of calls inside the zones dropped by 35 percent, to 350.
But some of the crime was pushed out to nearby areas. Within 1 mile of the zones, the number of service calls increased from 182 to 294 – a 62 percent increase.
Overall, the number of calls in and around the zones went down.
The city’s prostitution-free zone ordinance has lapsed and is no longer in effect.
In a memo to council members, Newbold said the proposed ordinance would have to reconcile “two core constitutional principles.”
The first could be a freedom-of-association challenge.
Newbold wrote that courts have found that the First and 14th Amendments have protected the right of people to associate. In one 2002 Cincinnati case, the 6th Circuit Court of Appeals found that a woman barred from an exclusion zone had the right to visit her grandchildren who lived nearby.
Newbold, however, noted that a 2001 Ohio case said that a drug exclusion zone didn’t interfere with a “fundamental personal relationship nor an association for expressive activity,” according to the police memo.
The other issue, Newbold said, is whether the ordinance would infringe on a person’s right to intrastate travel. He said courts have been mixed on this issue.
“There are significant constitutional hurdles that must be addressed whenever the government decides to regulate movement in a public area,” Newbold wrote. “In the event a court rules that an ordinance affects a fundamental right, then that ordinance will be reviewed with strict scrutiny.”
Charlotte-Mecklenburg Police Department’s Proposed Exclusion Zone Policy Is Racist
Charlotte-Mecklenburg Police is considering adopting a policy that prohibits people with arrest/criminal records from being in specific “high-crime” areas called “safety zones”. As the Charlotte Observer‘s Steve Harrison explains,
Here is how they would work: If CMPD found an area where there was an uptick in crime, the police chief could declare it a safety zone. Council members wouldn’t have to approve the zone.
If a person is arrested inside the zone, that person would be prohibited from returning. Within five days, the person could appeal the prohibition, on grounds such as the person is caring for children inside the area or the person lives or works there.
If the person pleads guilty or is convicted, he/she would be barred from the area for up to a year. If the person is found not guilty or if the case is dismissed for any reason, the person can return.
CMPD’s proposed “exclusion zone” policy is race-based segregation under another name.
Philosopher Theodor Adorno wrote that astrology was occultism dressed up in pseudo-scientific terms: star charts and tables leant superstition the appearance of objective fact. CMPD’s exclusions zones are antiblack racism dressed up in pseudo-legal and pseudo-objective terms. Because there is no biological basis for race, race-based segregation appeals to an ultimately subjective judgment about people’s racial identities. But criminal status, that’s objective: someone either has or has not been arrested, charged, convicted, or exonerated. That’s a matter of legal record.
Though the legal record may be objectively verifiable, criminality is far, far from objective. Blackness is criminalized. NYC’s infamous Stop & Frisk policy was ended after statistics showed that black and Latino men were stopped at rates in exponential excess of their proportional representation in the population. The US justice system convicts and incarcerates black people at extremely disproportionate rates. The institution of the police was designed to police black people, and, as plenty of people have argued, the contemporary police is a mechanism for profiting from the surveillance, punishment, and incarceration of black people. Criminalization targets black people.
So, because CMPD’s proposal to exclude people with arrest and criminal records from specific geographic areas targets criminals, it also targets black people.
There’s a hint in this story, also from the Observer. In the past, the city has put an injunction similar to the proposed exclusion zone on the north Charlotte neighborhood called Hidden Valley. Hidden Valley is a predominantly black and Latino neighborhood between Uptown and University City…and, uh, not too far from the new light rail line currently under construction up North Tryon. Interestingly, Camp Greene, a black neighborhood in west Charlotte that was a prostitution exclusion zone several years ago, that’s now the frontier of gentrification. So, it appears to be the case that exclusion zones are a technique that moves poor black populations out of geographic areas that are ripe for redevelopment.
Some philosophers might call safety zones a “state of exception.” Giorgio Agamben popularized the term, which refers to a state of affairs so dire and threatening that the state declares it necessary to suspend normal rights and rules of governance: a problem so severe supposedly justifies the state’s use of any means necessary. As other philosophers like Falguni Sheth and Alexander Weheliye have noted, the state of exception has been pretty much the rule for black people. To riff on W.E.B. Du Bois, black people are thought to be a problem, the problem, and thus their very existence justifies the state’s use of any means necessary to contain and eliminate them. In this sense, CMPD’s saftey zones are just another variation on a very, very old theme.
As Lester Spence, Jared Sexton, and many other black studies scholars have shown, contemporary society marginalizes black people by rendering them immobile, both literally (in the case of CMPD’s exclusion zones or via mass incarceration) and figuratively, say, in economic terms. In an economy that runs on entrepreneurship, flexibility, and so on, the inability to freely circulate is an economic disadvantage. By impeding people from, say, caring for their children, this makes them more vulnerable to all kinds of disadvantage: if you don’t have reliable family or friends to care for your children, you either have to pay someone to care for your kids, or you risk losing them to the foster system. The CMPD policy is a technique for rendering black people immobile, and often thus subjecting them to further state surveillance, economic disadvantage, and other types of structural racism. So the exclusion zone policy isn’t just racist in motivation, it’s racist in effect: it reinforces and intensifies the racism that black people already experience.
A No-Go Area for Those Arrested?
A plan in Charlotte, North Carolina, to create prostitution-free zones isn’t unprecedented, but it does raise question about constitutionality, racism, and effectiveness.
Elvert Barnes / Flickr
It’s an alluring idea for a police chief: You’ve got an area of town that’s a center for some sort of illicit behavior. What if you could just ban anyone who was arrested there from coming back for a year? Wouldn’t that solve the drug problem or the prostitution problem, or whatever else that’s hurting your city?
Charlotte, North Carolina, is the latest city to be tempted by the idea. The Charlotte-Mecklenburg Police Department is setting out to write an ordinance to fight prostitution by creating “exclusion zones.” If the department determined there was rising crime in an area, it could declare it such a zone. Anyone arrested there would be banned from returning for up to a year. If they were found not guilty or the charges were dismissed, they’d be allowed back.
When the Charlotte Observer’s report on the idea was published Tuesday, it lit up Twitter, with observers reacting with shock at the idea. But it’s not actually as novel as one might imagine. Charlotte itself had a prostitution-exclusion zone from 2005 to 2008, but chose not to renew it when the law expired. Portland, Oregon, had zones for prostitution and drugs from 1992 to 2007, when the mayor pushed to end them. But in 2011, the city reinstated an altered version. Cincinnati also used the zones for a while.
But there are some problems with the zones. “There are significant constitutional hurdles that must be addressed whenever the government decides to regulate movement in a public area,” the CMPD’s attorney bluntly noted in a memo to Charlotte’s city council over the proposed ordinance. Courts have been split, but some have argued the rules constitute a violation of the constitutional right to free association and to intrastate travel.
In Cincinnati, a woman who was arrested challenged the law after being excluded, because the order prevented her from visiting her grandchildren, who she was helping to raise. Although she was not convicted of the drug offense with which she was charged, the order held. She successfully challenged it. That’s likely not an unusual case: If people live in high-crime areas, they’re more likely to get mixed up in crime. Banning them simply banishes them from their homes—perhaps away from places where they have important social connections or can afford to live.
Nor is it clear that exclusion zones work all that effectively. During Charlotte’s first attempt, crime with prostitution zones dropped, but rose steeply in adjoining areas. Portland saw a similar experience. While residents initially applauded the zones as effective, the impact seemed to tail off over time, in part because officers simply quit arresting as many people.
The other obvious problem with setting up these zones is racial bias. It’s already well known that law enforcement for many offenses, including drugs, falls disproportionately on people of color. The problem is compounded when high-crime areas are also home to more people of color. When Portland ended zones in 2007, the mayor cited disproportionate targeting of blacks. African Americans who were arrested within zones were excluded at far higher rates than whites. In recent years, Cincinnati has pursued a total overhaul of its police methods. The Queen City has seen inequality rise more sharply over the last two decades than almost any other major city. School data show a city highly segregated by race. Charlotte is also already dealing with the fallout from the August mistrial of Randall Kerrick, a white police officer who shot and killed Jonathan Ferrell, an unarmed black man who was seeking assistance after wrecking his car. The city separately reached a $2.25 million settlement with Ferrell’s family.
Charlotte’s debate seems, in large part, to echo the broader debate over criminal justice in the U.S. As Kelefa Sanneh noted in The New Yorker last month, many of the tough-on-crime policies now under assault from reformers and Black Lives Matter activists were originally pushed by well-meaning black leaders. In Charlotte, one of the major proponents of exclusion zones is a black Democrat, Al Austin. Police Chief Kerr Putney is black, too.
Yet past experience—with both exclusion zones and tough-on-crime policies in general—is that even when they are able to overcome constitutional objections, they lead to more arrests for more people, and likely people of color. They are very effective at lengthening rap sheets, but since crime tends to just migrate when the zones are created, it’s less clear whether they do much to stop crime. And they draw resources away from other approaches that might help lower crime, from social programs to policing styles that deemphasize the volume of arrests, as Cincinnati has done.
Tempting though exclusion zones may appear, law-and-order approaches seem increasingly counterproductive and anachronistic today, especially since approaches like Cincinnati’s have shown such promising results
