NYC-Based Public Safety Reforms for 2023

Memo

During New York’s November 2022 elections, crime was a central issue in the races for governor and attorney general. Nevertheless, for now, it remains unclear (indeed unlikely) that power players in Albany will have the appetite to make significant alterations to recent legislative “reforms” associated with the state’s post-2020 crime surge. Those laws include the 2017 “Raise the Age” legislation that increased the age of criminal responsibility; the 2019 changes to NYS bail and discovery statutes; the June 2020 package of 10 police reform bills; and the 2021 parole reform (“Less Is More”). A series of published and forthcoming reports by Manhattan Institute’s Policing and Public Safety Initiative explores the deleterious impact of these laws on public safety. The reports also recommend solutions to realize the intentions of these reforms while safeguarding the efficacy and consistency of New York’s criminal justice system.

This memo will suggest three agenda items that could be prioritized at the City level—through legislative and/or administrative action—to enhance the city’s public safety in the absence of meaningful statewide action.

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1. Amend the “Diaphragm Law”

BACKGROUND

The challenges that law enforcement agencies face regarding police officer recruitment and retention have been well documented. In March 2022, the Police Executive Research Forum (PERF) reported the results of comprehensive surveys of its law enforcement agency members, showing that, relative to 2019, there were 3.9% fewer hires, 42.7% more resignations, and 23.6% more retirements in 2021.[1] The total number of officers working in responding departments had declined approximately 3.5% over the two-year period since 2020. PERF identified declining morale as a significant driver of these trends, noting that “[Survey] respondents cited the protests and public sentiment towards the police over the past two years,” and that “officers are now more willing to leave for another agency… if they see the other jurisdiction as being more supportive of police.”[2] This nationwide trend has been covered extensively by news outlets, including NPR and CNN—whose coverage has also noted officer morale as a key issue underlying the recruitment and retention crisis.[3] The NYPD has been hit especially hard by this trend, having lost more than 1,400 officers to resignation through September of this year—after losing more than 1,300 between 2020 and 2021.[4] In 2015, that measure was well below 400 officers.[5] An additional 1,628 officers retired from the NYPD through September of 2022.[6]

Contributing to low NYPD morale may be the slew of police reforms aimed at raising the transaction costs of law enforcement by expanding legal risks officers face for decisions they make while on duty, as well as the physical risks they face while on duty. Perhaps the most controversial of these reforms is the city’s “Diaphragm Law,” which criminalizes the following:

The operative provision of the law, which was challenged by the NYC police unions, does not include a mens rea (“mental culpability”) standard, and does not include any exceptions for situations in which the suspect is actively resisting arrest. The law was struck down at the trial court level as unconstitutionally vague, but it was reinstated earlier this year by an appellate court.[8]

Practically, this legal prohibition can put officers fighting suspects at a tactical disadvantage: the public recently caught a glimpse of this reality in viral videos of officers struggling unsuccessfully to take individuals into custody.[9] This, in turn, can make officers in the field hesitant to act, in order to minimize the risk of injury or legal exposure. Perhaps ironically, the rules set out in the Diaphragm Law—as well as the state’s ban on police using what are often referred to as “chokeholds”—may end up putting some suspects in greater danger of more serious force. Physical confrontations that could have been stopped through now-banned grappling techniques risk devolving such that more forceful options, such as TASERs, head strikes, or firearms, become necessary.[10]

Indeed, multiple police departments around the country have credited the use of Brazilian Jiu Jitsu by trained officers with reducing both suspect and officer injuries during use-of-force incidents.[11] In New York City, however, many of those techniques would now constitute crimes thanks to the Diaphragm Law, which was passed in response to the 2014 death of Eric Garner after an NYPD officer used a neck restraint to take Garner to the ground. While tragic, the best available data (which are admittedly scant) do not support the idea that neck restraints are especially likely to cause death or serious injury. A 2021 study published in Police Practice and Research analyzed 230 uses of neck restraints by officers in Spokane, WA, and found that such restraints “yielded a lower rate of injury to subjects” than other force options.[12] A more recent study, published in the Journal of Forensic and Legal Medicine, of 944 field uses of vascular neck restraints across three police departments found that the tactic was effective in facilitating suspect apprehension 92.6% of the time and did not cause a single instance of death or significant injury.[13]

PROPOSAL

With the aims of communicating support for current officers and encouraging the recruitment of future officers, the Diaphragm Law should be amended as follows:

• Include a mens rea standard, requiring prosecutors to establish as an element of the offense that officers intentionally (as defined in § 15.05 of Chapter 40, Part 1, Title B of the NYS Penal Code) applied a prohibited neck restraint, and that they intentionally sat, knelt, or stood on the chest or back in a manner that compressed the diaphragm;
   
• Create an exception to the law for cases in which the subject is actively physically resisting arrest; and
   
• Restrict the attachment of criminal penalties to cases involving physical injuries proximately caused by the violation of the statute.

2. Begin systematically reporting data on repeat offending

BACKGROUND

As I have suggested in the past,[14] because New York City is the state’s economic engine, Mayor Eric Adams can apply significant pressure on Albany to adjust its course with respect to criminal justice policy—particularly regarding the recent reforms discussed above.

One throughline in criticism of the changes enumerated above to NYS’s laws governing bail, discovery, parole, and juvenile justice, is the loss of incapacitation benefits caused by each. If repeat offenders cannot be detained, they spend more time on the street where they are able to commit more and more crimes—which wouldn’t have occurred if the perpetrators were behind bars.[15] While the mayor has been consistent in his efforts to bring attention to this issue; and while the news media has picked up on illustrative examples of such crimes, defenders of the status quo continue to argue that there does not exist any systematic data that could tie such reforms to the recent crime spike in NYC.[16]

PROPOSAL

To add force to his calls for legislative action in Albany, Mayor Adams should direct the NYPD, to begin reporting the following statistics on an annual basis within one of the department’s regularly published reports:

• The average number of arrests in the criminal histories of those charged with:
  
  • Homicides; shootings; illegal firearm possession; and violent felonies;
     
• The shares of those arrested and charged with homicides, shootings, illegal firearm possession, and violent felonies who, at the time of the offense, were:
  
  • On pretrial release; on probation; or on parole.

Moreover, the mayor should direct his office for criminal justice (MOCJ) to begin reporting on a rolling basis:

• The share of those charged with homicides, shootings, illegal firearm possession, and violent felonies who are:
  
  • Released pretrial (with a breakdown of the shares released on their own recognizance, on bail, or on non-monetary conditions); convicted; sentenced to probation; sentenced to jail terms; and sentenced to terms of imprisonment (and the length of the term to which they were sentenced for each category).

To the greatest extent possible, the mayor should direct MOCJ to publish the same statistics dating back to 2015, so that the public can get a sense of the trendlines.

3. Experimenting with a new recruitment strategy

BACKGROUND

The city should urgently confront the problem of police officer and recruit shortages—and it is worth noting that the city’s pension fund reported last month that the department will lose approximately 4,000 officers to retirement by year’s end.[17] These members of service are likely to be retiring from positions of leadership, as well as from the department’s Detective Bureau, highlighting the need for well-trained investigators, and a talented pool of future executives.

PROPOSAL

In order to address the NYPD’s recruitment and retention crisis outlined herein as well as in the background of section of No. 1 above, the department and the Adams administration should build out and execute a strategy to attract high-level career-oriented recruits.

The department should consider a small-scale recruitment experiment to attract candidates with college and graduate degrees, who can both augment the city’s near-term crimefighting efforts and become the next generation of NYPD leaders. This could allow a select group of qualified candidates, who perform exceptionally on the written exam and throughout the recruit screening process, to be placed on a fast-track to investigative and leadership roles.

The department should curate an academy curriculum that will—similar to what the U.S. military does through Officer Candidate School[18]—provide specialized training to those who opt for the executive or investigative tracks. Once graduated from the academy, these officers should become eligible for an advanced pay scale. They should also be given assignments that will prepare them to be promoted to leadership or investigative roles within three years of academy graduation, with the understanding that they will be given priority as they pursue future promotions.

The Manhattan Institute thanks the Klinsky Leadership Series for its support in the publication of this paper.

Please see Endnotes in PDF