By Henry J. Stern
I begin with a story which I tell periodically. It made a strong impression on me when it happened (I was nine or ten years old). It is still embedded in my conscious mind, and this is a good time to tell it, because it leads to other examples of the enormous gap that still exists in areas between what is legally permitted and what happens in the real world we inhabit.
In the 1940s, when I was a little boy and most of you were yet unborn, my father used to come home from work each evening on the I.R.T. to our apartment on Post Ave. in Inwood. When he came home he carried under his arm a copy of the World-Telegram (that was before it swallowed the old Sun in 1950). He thought that Hearst’s Journal-American, which splashed red ink in its front-page headlines, was too conservative and sensational at the same time. The Post was a tabloid, and the ink came off on your hands and on your suit. The World-Telegram was the sensible, businessman’s newspaper.
I eagerly awaited my father’s arrival home, not only to see him, but to read the newspaper he brought. The paper was full-sized and I was small, so I spread it out on the living room floor to read.
A subject I read about frequently was a man named Frank Costello, who lived at the Majestic apartment house, an art-deco twin towered building at 115 Central Park West. Costello was reputed to be a very important figure in organized crime, but he was usually referred to in the Telegram as “The Prime Minister of the Underworld.”
That phrase really caught my attention. I had read a lot about the Prime Minister of Great Britain, our wartime ally. He was Winston Churchill, who was, then as now, very highly regarded. The question that came to my young and relatively unsophisticated mind was: “If Frank Costello is prime minister of the underworld, and the World-Telegram knows about it and prints it in the paper, why don’t the police know about it, and, if they do know, why isn’t Costello arrested and sent to prison?”
I asked my father to answer the question, and he said that it was complicated. A few years later I went to law school, still hoping to find the answer. What I learned, among other valuable things, is that just because a man is a criminal, that doesn’t mean that he can be arrested and prosecuted unless there is proof beyond a reasonable doubt that he has committed a particular crime.
And serious criminals can hire fine lawyers who can instill the doubt that prevents conviction. (See People v. O.J. Simpson) Jerks who blunder into crimes usually do not have the quality of representation that professional criminals or members of organized crime can afford.
Later, when I was starting out in city government, I worked for two borough presidents of Manhattan, under two distinguished people, the late Edward R. Dudley and Constance Baker Motley. I would attend community board meetings at night and during the day I would see what I could do to address people’s complaints about city services.
A frequent complaint was on-street prostitution. Local residents complained to the police, but apart from an occasional roundup, there was no change in the condition. The block that generated the most complaints was E. 30th St., between Park Avenue South and Lexington Ave.
When the Johns came by, driving east, many straight from the Lincoln Tunnel, the women would wait for a car to stop, jump in and service the driver. In this line of work there was no discrimination against B and T people, (a putdown describing those who did not live in Manhattan, but entered it by bridge or tunnel).
The frequent objects of citizen complaints were police officers, who often walked past these women and did not disturb them in any way. It was assumed that the officers were being paid off not to interfere, either by receiving cash or relying on an exchange of services.
In recent years, however, the problem has centered less on corruption and more on what police officers are allowed to do. Today, simply observing a person who is obviously a prostitute (by her dress, by her location, by her manner, by the time of day or night) cannot be arrested, or even forced to move, because the police officer has not witnessed a crime being committed. With today’s standards of political correctness, police action against such a person would be objected to as “prostitute profiling”. Anti-loitering statutes have been struck down by the courts as vague. They are certainly not precise, but how else can a city prevent prostitutes (sex workers, in today’s lingo) from standing on street corners to solicit passersby and driversby?
How can a police officer justify acting against a particular individual? Is he or she judging by gender, apparel or ethnicity? Young lawyers from the finest firms fight such arrests, under the rubric of pro-bono activity.
The presumption here is that whatever the state or the city tries to do is assumed to be wrong, and that in any conflict between the state and the individual, the individual defendant is likely to be a victim of state power.
The law itself imposes limits on police activity, and such laws have some justification. We do not want random stops of innocent people, particularly when they are race-based. We do not want citizens, or non-citizens, driven out of a neighborhood because of their appearance, their poverty or their lack of housing, clothes or food. But when a reasonable officer believes (and pictures can be taken to support that conclusion) that a person is in a particular place for the purpose of committing a crime, it seems foolish that the officer must wait for the crime to be committed before taking action. Besides, crimes involving consent usually occur in private, not public places, where people can be observed in the act.
The street prostitution situation is a microcosm of the Costello problem. Yes, nearly everyone knew that Frank Costello was an important gangster, but he was beyond the power of the law.
Law enforcement today suffers from serious impediments, some the result of state legislative action or inaction. For example, the New York State Assembly, under the leadership of you know who, refuses to allow D.N.A. testing of criminals in many cases. As a compromise in 2005, some testing was allowed. But the identifying technology, which protects the innocent as it convicts the guilty, is opposed by the criminal defense bar, who fight tooth and nail against scientific means of identifying their clients beyond doubt. In Albany, criminal lawyers have almost as much influence as personal injury lawyers. We wonder why.
Henry J. Stern is the director of New York Civic.
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