Misdemeanorland

Criminal Courts and Social Control in an Age of Broken Windows Policing

Issa Kohler-Hausmann

• Publisher: Princeton University Press
• Year: 2018
• ISBN:
  9781400890354
• Topic: Scienze sociali
• Subtopic: Criminologia

An in-depth look at the consequences of New York City's dramatically expanded policing of low-level offenses Felony conviction and mass incarceration attract considerable media attention these days, yet the most common criminal-justice encounters are for misdemeanors, not felonies, and the most common outcome is not prison. In the early 1990s, New York City launched an initiative under the banner of Broken Windows policing to dramatically expand enforcement against low-level offenses. Misdemeanorland is the first book to document the fates of the hundreds of thousands of people hauled into lower criminal courts as part of this policing experiment.Drawing on three years of fieldwork inside and outside of the courtroom, in-depth interviews, and analysis of trends in arrests and dispositions of misdemeanors going back three decades, Issa Kohler-Hausmann argues that lower courts have largely abandoned the adjudicative model of criminal law administration in which questions of factual guilt and legal punishment drive case outcomes. Due to the sheer volume of arrests, lower courts have adopted a managerial model--and the implications are troubling. Kohler-Hausmann shows how significant volumes of people are marked, tested, and subjected to surveillance and control even though about half the cases result in some form of legal dismissal. She describes in harrowing detail how the reach of America's penal state extends well beyond the shocking numbers of people incarcerated in prisons or stigmatized by a felony conviction.Revealing and innovative, Misdemeanorland shows how the lower reaches of our criminal justice system operate as a form of social control and surveillance, often without adjudicating cases or imposing formal punishment.

PART I

The Logic of
Lower Courts

1

The Rise of Mass Misdemeanors

New Yorkers have for years felt that the quality of life in their city has been in decline, that their city is moving away from, rather than toward the reality of a decent society. The overall growth of violent crime during the past several decades has enlarged this perception. But so has an increase in the signs of disorder in the public spaces of the city.

—POLICE STRATEGY NO. 5, 1994

For most of the peak crime years in New York City—about 1988 to 1991—felony arrests outpaced misdemeanor arrests. In 1993 that changed. Rudolph Giuliani was elected mayor, and he appointed William Bratton police commissioner. In 1994, they introduced a series of tactical and organizational reforms to the NYPD that have—perhaps somewhat misleadingly—been collectively classified under the unifying rubric of Broken Windows or quality-of-life policing. In policy documents and speeches, the NYPD and mayor aligned themselves with the central claims made by criminologist George L. Kelling and political scientist James Q. Wilson in their 1982 seminal article “Broken Windows.” The article maintained that the police ought to refocus on maintaining order in urban spaces and reducing fear of generally disorderly conditions.1 Embracing these arguments, the NYPD announced in a 1994 policy document titled Police Strategy No. 5: Reclaiming the Public Spaces of New York, a new policing regime.

This chapter briefly recounts the origins of the policing experiment of the early 1990s that flew under the Broken Windows banner and explores how that experiment has become an institutionalized feature of New York City’s law enforcement since then. The history is tailored to highlight those changes in enforcement that most affected the flow and composition of cases into the lower criminal courts and how the justifications for this policing model demanded bureaucratic practices that in turn shaped how these low-level cases came to be processed by criminal justice actors. Specifically, I emphasize the new record-keeping and record-sharing practices that the police and courts innovated in this period in an effort to mark suspected persons for later encounters and to check up on prior records to identify and target persistent or serious offenders.

Lower criminal courts are not islands of judicial activity; they are part of a larger field of criminal justice in a particular space and time. The law enforcement practices and political understandings that generated the flow of misdemeanor arrests are essential context for understanding the logic by which lower courts currently process those arrests. Therefore, this chapter also touches on the sociological and political understandings that underpin the Broken Windows policing model to foreshadow how those understandings inflected the entire field of misdemeanor justice. I then present data from a number of sources to profile what these changes in policing tactics meant for the types of cases and defendants that were fed into misdemeanorland.

The Plan: Police Strategy No. 5 and the Broken Windows Theory

The document that established New York’s Broken Windows regime made two claims that have endured as guiding principles of the city’s policing. First, Police Strategy No. 5 identified low-level offenses as an intrinsically important enforcement priority. It listed a series of quality-of-life conditions the police would target—noise complaints such as loud music, motorcycles, and car alarms; illegal double parking; blocking traffic; prostitution; aggressive panhandling; squeegee cleaners; graffiti; illegal peddling and vending; aggressive bicyclists; loud clubs and discos; and public drunkenness. The mayor and police department proclaimed their intent to take these issues seriously in an effort to restore New York to a “society of civility.”2 As Bill Bratton explained in a 2013 interview, “[Q]uality of life crimes actually didn’t victimize a person, but what they were victimizing was the city psyche about itself. . . . [They] contributed to the decaying of neighborhoods. The victim was the neighborhood. The victim was the borough. The victim was the city. And this malaise was spreading because it looked like government and the police—as the agents of the government—weren’t addressing what was creating fear and unease in people as they watched their neighborhoods deteriorate.”3

Second, the strategy document endorsed another central claim from Kelling and Wilson’s article, which was that “disorder and crime are usually inextricably linked, in a kind of developmental sequence.”4 Although the paper was released after the city hit its peak of violent crime, it was not obvious at the time that the trend would continue in the downward direction, much less that crime would decrease at the magnitude it eventually did. Announcing their new plan, the NYPD and the mayor declared, “Police Strategy No. 5: Reclaiming the Public Spaces of New York will emerge as the linchpin of efforts now being undertaken by the New York Police Department to reduce crime and fear in the city.”5 They repeated such claims in various other pronouncements during this period, arguing that a renewed focus on low-level crime was instrumental in reducing serious violent and property street crime through various mechanisms.6

Much of the theory and practice of New York’s signature policing model laid out in the early 1990s has endured over changes in the city’s political and police leadership. More than two decades after authoring Police Strategy No. 5 under Republican Mayor Rudy Giuliani, Bratton returned to take up the position of NYPD commissioner under a progressive Democratic mayor, Bill de Blasio.7 Both the mayor and the commissioner reaffirmed their broad support for the model and tactics of Broken Windows policing, albeit with some stated modifications. Bratton repeatedly reiterated the intertwined theoretical claims presented in early iterations of Broken Windows, namely, that disorderly conditions license serious offending, that violent criminals are also committing minor crimes, and that minor criminals will grow up into major criminals if not interdicted early in their offending arc. He also reaffirmed his faith in the efficacy of tactics that he gathered under the rubric of Broken Windows policing.8 In a 2015 NYPD publication titled Broken Windows and Quality-of-Life Policing in New York City, Bratton explains that his reasons for initially embracing Broken Windows policing were verified by his experience in the early 1990s:

We wouldn’t ignore the little things. Fare evasion and graffiti would no longer be considered too petty to address. In fact, we’d focus on them as vigorously as on serious crimes like robberies, if not more so. Why? Because serious crime was more likely to occur in a lawless environment—and ubiquitous low-level disorder signaled lawlessness even more than serious crime, which was less common. We also quickly learned that the serious criminals committed petty crimes, too. When they weren’t committing robberies or assaults, they were hopping turnstiles, unlawfully moving between cars, and generally diminishing the quality of life that should have been enjoyed by other, fare-paying riders. A subway criminal arrested for a misdemeanor rather than a felony wouldn’t be going to prison, but he wouldn’t be victimizing anyone for a while, either.9

This same document went on to insist that the Broken Windows policing model was not only responsible for the major crime decline in New York City, but also for New York State’s significant incarceration decline. “Arresting someone for a misdemeanor frequently prevents him from graduating to committing felonies, for which severe sanctions like prison may result. That’s why index-crime arrests are down 36% from 1994 . . . [and] from 1990 to 2012, New York City has sent 69% fewer people to state prisons.”10

Both early and current proponents of Broken Windows policing have put forward various mechanisms whereby enforcement against low-level offenses would cause a reduction in serious street crime. The most familiar of these is what Bernard Harcourt calls the “social meaning” thesis, which holds that disorderly conditions send a signal to potential lawbreakers that there is no collective enforcement of norms or law.11 As Kelling and Wilson put it in their seminal article, “Window-breaking does not necessarily occur on a large scale because some areas are inhabited by determined window-breakers whereas others are populated by window-lovers; rather, one unrepaired broken window is a signal that no one cares, and so breaking more windows costs nothing.”12

Another mechanism whereby intense low-level enforcement activity might reduce violent street crime is by offering frequent possibilities for information collection and surveillance. When police stop, summon, or arrest people, they have the opportunity to question them about unsolved crimes, check for outstanding warrants, and initiate records collection on the people encountered. Bratton’s memoir The Turnaround illustrates how the police understood the value of quality-of-life policing as an information source about serious crime and its perpetrators. In it, he recounts a meeting from the 1990s in New York at which Jack Maple, Bratton’s deputy commissioner, urges a precinct commander reporting a series of shootings in public housing to engage the pretextual intelligence-gathering uses of quality-of-life enforcement: “How are we doing with the buy-and-busts? Are we debriefing prisoners? When you have CIs [confidential informants], are you bringing them in to look at photos so they can give you the organizational structure of the criminal element in and about the housing project? . . . Are we doing any quality-of-life enforcement? Are we doing warrant checks? Have you done the overlays from the computer with the people with active bench warrants and parole warrants and systematically gone through them, arrested them for warrants, and debriefed them to find out who was engaged in this activity?”13

In this and other arguments for the assorted tactics under the Broken Windows rubric, he highlighted how low-level enforcement had tactical value beyond signaling a norm of order maintenance. He noted that these tactics would identify scofflaws, those with the potential to commit violent crimes, and those who had outstanding warrants for serious charges. Intensive, low-level arrests were of value to the overall crime-fighting mission by bringing the serious offenders back to court to be adjudicated and keeping tabs on marginal offenders. But in order to do so, the NYPD had to transform how patrol cops approached their beat, because they had long thought of low-level enforcement as piddly police work. Bratton explained:

So it was a matter of changing the attitude of the cops; that these crimes were important to address. And one of the ways that cops began to understand the linkage between quality-of-life, minor crime and more serious crime was as they began to encounter these people they found that many of them were wanted on warrants for other offenses that they hadn’t bothered to show up in the courts for. Why? Because the department didn’t go out and arrest them when they didn’t show up because they were minor offenses. But many of these people were wanted for very serious offenses. . . . So by going after quality of life we were also having an impact on more serious crime, because we were finding people who had failed to show up in court. We were finding people who were carrying weapons into the [subway] system—many who were carrying them into the system to use them.14

So the police came to understand that in order to use these tactics as a means of stopping the underlying conduct that constituted quality-of-life offending or as a means of deterring and incapacitating people who were on their way to commit serious crimes, they had to engage mechanisms to identify and sort who was who in high-crime or ostensibly disorderly spaces. They had to implement enforcement in a way that would allow them to figure out who was committing the serious crimes; who was an occasional troublemaker, one-time errant citizen, or incorrigible misdemeanant; who had disregarded the obligation to show up at court; who had information on other serious street crime; and who might be on his way to becoming a persistent low-level offender or serious criminal.15 Formal enforcement against low-level offenses with summonses or arrests—instead of informal admonishments—offered the opportunity to do this by generating records about people and engaging them in the demands of the court system.16

WHAT CHANGED UNDER BROKEN WINDOWS POLICING? FREQUENCY AND FORMALITY

In order to effectively sort people living in high-crime or ostensibly disorderly spaces, the police needed both more low-level contacts and new tools in these contacts. They needed more uniformed bodies on the street observing and intercepting low-level offending, and they needed mechanisms for recording encounters so they could reliably trace people through space and time. Luckily for Bratton, the new tactical changes he proposed were implemented in an era of rapidly increasing police staffing. Starting in 1990 under Mayor David Dinkins and Police Commissioner Lee Brown, the city added thousands of new uniformed officers to the ranks of the NYPD. Figure 1.1 shows that, relative to a 1990 baseline, the NYPD exp...