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Review: A Yale Law Professor’s Big Look at How We Punish Small Crimes

“A masterpiece in illustrating how New York City’s misdemeanor courts exert social control on those who violate low-level criminal laws”

September 7, 2018

Cross-posted from The National Book Review.

Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing by Issa Kohler-Hausmann 

Princeton University Press, 268 pp.

New York City in the 1970s, 1980s, and early 1990s looked quite different than it does today. In a city ravaged with crime, homicides grew to an all-time high in 1990, totaling 2,245 in just one year. Last year, there were fewer than 290, which according to The New York Times is the lowest number since reliable records have been kept. The dramatic drop in crime has occurred across the nation, with crime peaking in 1991, and New York City has seen some of the most staggering decreases.  

The causes of the great crime decline continue to be debated in the halls of academia as well as among politicians, law enforcement, and just about anyone who can remember removing their car radios each night and using a steering wheel lock when parking on city streets. In his successful campaign for New York City Mayor in 1993, Rudy Giuliani ran on a platform of quality-of-life improvements. The then-candidate pledged to get rid of graffiti, aggressive panhandling, public urination, open-air drug deals, and the omnipresent squeegee men. 

When he became mayor, Giuliani appointed William Bratton as his police commissioner, and the mayor and his police chief declared war on low-level crime, espousing the “broken windows” theory developed by social scientists James Q. Wilson and George Kelling. The theory hinges on the idea that if a broken window goes unfixed (or graffiti or some other visible sign of lawlessness remains), people feel free to vandalize a whole building or engage in further crime.

A 1995 David Brooks article from The Weekly Standard explained former Mayor Giuliani’s justification for his war on low-level quality of life offenses: “When people see these things, and see that they don’t get fixed,” he said, “then over a period of time citizens get the impression that no one’s in charge. That undermines the social fabric.” 

The story of New York City’s crime reduction and the revitalization of its urban spaces is relatively well known. Yale law and sociology professor Issa Kohler-Hausmann’s Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing wrestles with a far less understood but very practical consequence of the City’s new get-tough-on-small crimes policing strategy. “Much less deliberation and planning,” Kohler-Hausmann writes, “addressed what legal actors ought to do with these cases when they arrived at the courthouse.” 

The 268 pages of Misdemeanorland examine the book’s central question: “What happens to all of those arrests when they arrive in the courts?” As a result of aggressive enforcement of low-level crimes in New York City starting in the early 1990s, the New York Police Department (NYPD) increased misdemeanor arrests exponentially, from approximately 65,000 arrests in 1980 to more than 250,000 in 2010. This dramatic increase provides the context for the book’s investigation, a less studied yet transformative change in how New York City’s criminal courts dealt with this revolution in policing practices. The book aptly points out that the great philosophers and thinkers have not historically grappled with what justice demands when it comes to these low-level crimes.

While Kohler-Hausmann’s research draws on her fieldwork in New York City, the revelations and findings are applicable to criminal courts across the nation. Misdemeanorland shows how prosecutors, public defenders, and judges faced with unmanageable caseloads and already overwhelmingly under-resourced, were forced to “engage in creative problem solving” to cope with the difficult realities that so-called broken windows policing brought with it. 

Kohler-Hausmann’s theory is that in lieu of the city’s criminal courts deciding issues of innocence and guilt, the sheer volume of people hauled in front of them on low-level charges such as loitering, turnstile jumping, and — in one case that Kohler-Hausmann observed — taking up two seats on the F train, the legal system’s frontline actors were forced to problem-solve about how to manage these cases.

One of the book’s findings is that “misdemeanorland,” a term the author defines as a jurisdictional and physical space where these low-level crimes are processed, counterintuitively results in sparse criminal convictions and even fewer jail sentences. So what does happen in the clogged and crowded halls of justice in New York City? According to Kohler-Hausmann, in lieu of the Law & Order courtroom scenes that most associate with Gotham’s criminal courts, lawyers and judges dealt with their increased low-level caseloads through a managerial process. 

Kohler-Hausmann argues that misdemeanor justice has evolved into figuring out and sorting through whether those arrested for low-level crimes are able to follow the court’s, and ultimately society’s, legal and social norms. She explains that prosecutors in misdemeanorland rely on techniques that allow them to manage “future risk by keeping tabs on the defendant over a period of time, maintaining legal leverage with mandatory court appearances or an order of protection, using the passage of time between adjournments to figure out whether the person really deserves to be punished by seeing whether this was a one-time aberration or part of a pattern of unruly behavior.”  

For example, the standard offer in most of the district attorney’s offices in New York City for low-level first-time arrests is an adjournment in contemplation of dismissal, commonly referred to as an ACD. If defendants don’t get arrested in the six-month period following their ACD, the case will be dismissed. Yet the ACD allows courts to monitor and keep track of the behavior of thousands of defendants who receive this disposition each year. If they are rearrested within those six months, prosecutors will often ratchet it up to a “violation,” with a conditional discharge, such as a requirement that a defendant participate in programming or comply with an order of protection. 

The book also pointedly confronts the reality that a significant portion of those who find themselves trapped in this maze of “misdemeanorland” are from poor communities heavily policed because of drug and other criminal activity. Despite evidence of drug use and other crimes occurring across racial and class groups, the NYPD’s policing practices, intended to reduce crime across the city, have resulted in a disparate enforcement for members of some communities.

Misdemeanorland is sure to become a key text in undergraduate and graduate classes about the law, justice, urban studies, and even philosophy. Deftly moving between data visualizations and anecdotes from the field, it is a masterpiece in illustrating how New York City’s misdemeanor courts exert social control on those who violate low-level criminal laws rather than imposing traditional punishment, such as incarceration. The book also raises critical questions that we need to spend more time grappling with about the role of punishment — if any, how much, and what kind — when it comes to the city’s least serious, in some cases barely criminal, violations.