Magazine | February 25, 2019, Issue

Law and Disorder

The outside of the East Baton Rouge Parish Prison in Baton Rouge, La., March 5, 2018 (Shannon Stapleton/Reuters)
Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing, by Issa Kohler-Hausmann (Princeton University Press, 328 pp., $29.95)

The day before I began this review I returned from Zurich, Switzerland. As far as I could tell from my travels throughout the city, the entire conurbation, including modest outer neighborhoods, was orderly, gleaming, and spotless. Every inch was carefully tended, litter was virtually absent, no homeless or beggars were in evidence, and scruffy parks, crumbling pavement, vacant, junk-filled lots, and decrepit buildings were not to be found. No loud street music blared, and neatly dressed pedestrians patiently waited for lights to change. I never saw the police. There was some graffiti, mostly away from the affluent city center, but the unassertive scrawls were tame by American standards. The contrast with the mean streets of Philadelphia I traversed on my way home from the airport was stark. Loitering, litter, and squalor were everywhere, and the homeless were out in force. Abandoned lots and boarded-up buildings dotted most boulevards, even in some of the “nicer” business and residential districts. “Police activity” repeatedly slowed traffic.

Precincts like the worst I drove through form the backdrop for Misdemeanorland, a Yale law professor’s detailed and carefully researched account of the decades-long effort to deal with the low-level lawbreaking that bedevils many American cities. These “subfelony” rule violations, and the measures taken to discourage and contain them, have spawned a sprawling bureaucratic and legal establishment peopled by numerous attorneys, prosecutors, judges, clerks, bureaucrats, law-enforcement officers, and other functionaries. Through the system pass thousands of urban dwellers, many of them chronic scofflaws, for whom its intricacies, demands, and arcane rules are pervasive facts of life that seriously curtail their freedom and warp their existence.

According to Issa Kohler-Hausmann, who conducted her investigations in New York City, the system has grown larger and more complex over the past 50 years owing to several developments. First and foremost, although this book soft-pedals its importance, was a dramatic surge in urban crime starting in the 1960s. The “broken windows” initiatives adopted by cities in the 1990s aimed to establish order and curb more-serious lawbreaking. New York’s version of the policy targeted a long and varied list of infractions such as shoplifting, turnstile-jumping, public urination, trespass, vandalism, excessive noise, and driving without a license. New York’s computerized CompStat system, which gave the police department real-time information on crime “hot spots,” allowed the city to direct the most intensive policing to poor and minority neighborhoods from which most misdemeanor charges originated. The author’s data show how these tactics fueled an almost fourfold increase in New York’s subfelony arrests, from 65,000 in 1980 to more than 250,000 in 2010.

The book is devoted largely to de­scribing the inner workings of the system designed to deal with this swelling torrent by processing and resolving the resulting charges. The author has certainly done her homework. She spent three years on the project, learning the fine points of subfelony law, reviewing complicated procedures, familiarizing herself with the system’s informal practices, poring over court records, and studying New York state crime statistics. She sat in courtrooms for countless hours and conducted scores of interviews with attorneys, officials, and arrestees. From this truly impressive effort she has crafted a detailed portrait of what she terms a “managerial model” of criminal enforcement dedicated, she asserts, to the grand and largely quixotic project of achieving “social order and control.” In plain English, the system aims to make people more law-abiding, and the city’s streets safer and more orderly, by improving behavior.

Within the elaborate apparatus that has evolved to serve these goals, Kohler-Hausmann identifies three stratagems that are designed to bring violators to heel: “marking, procedural hassle, and performance.” “Marking” ties the disposition of charges, ranging from jail time to conditional or outright dismissals, to violators’ past and present behavior and willingness to do what they’re told. Outstanding bench warrants, parole violations, failure to show up in court, and lack of compliance with court-imposed penalties and conditions all figure into the equation. “Procedural hassle” comprises the hurdles that the accused must surmount for the disposition of charges, including showing up for hearings, reporting to officers, and completing paperwork. “Performance” designates the fulfillment of conditions and compliance with any court orders resulting from arrest and processing, including maintaining good behavior, attending prescribed programs, completing community service, and honoring orders of protection.

The author is particularly effective in describing the hardships the system’s demands can impose on people who, deficient in self-direction and resistant to rule-following in the best of times, lead remarkably precarious and chaotic lives. Addiction is rife, so strictures surrounding drug use demand “incredible effort” and often feel “brutal.” Attending the programs that courts routinely prescribe — an assortment of instructional and therapeutic sessions designed to “educate” people away from their rule-breaking — calls for organizational skills that are beyond most arrestees, especially the repeat players. And orders of protection, imposed by cautious judges in most of the domestic disputes that clog the system, entail rigid and unrealistic restrictions that invite transgression, generating fresh infractions that further tar the accused. Finally there is the penalty of community service, which functions as a test of rule-following as well as a way of “giving back” but routinely upends child-care arrangements and interferes with day jobs, often resulting in their loss.

Kohler-Hausmann is not pleased with this messy, cumbersome, costly, and often perverse system and deplores the petty injustices and indignities that it too often imposes. She notes that the hurdles and hassles suffered by its denizens are of unproven value, and she bemoans the lack of empirical evidence for the notion that the system actually does result in greater “social control.” Her main beef, though, is that misdemeanor courts rarely perform what she regards as the defining judicial functions of determining guilt and innocence and safeguarding rights. Rather, the priorities of both prosecutors and courts are swift disposition and compliance, for which they unapologetically rely on a rough-and-ready assessment of the accused’s past and potential future behaviors. In other words, the author disapproves of the managerial model and looks to the adjudicative-model ideal.

What she omits is that falling short of that ideal is not unique to Misdemeanor­land. Plea bargains, assembly-line justice, and deal-making are top-to-bottom features of the criminal-justice system. The sheer volume of cases, which continuously threatens to overwhelm the capacity to deal with them, necessitates these shortcuts. The author’s point is illustrated by portraits of a few of the rare accused who, convinced of their own innocence, insist on going to trial. The lengthy procedures required to resolve even their minor charges tie up the system for months and burden the accused themselves, who must endure multiple appearances, repeated postponements, tedious formalities, and unpredictable outcomes. These stories cannot help but make us wonder what would happen if many more people elected this option. The short answer is that the system would almost certainly grind to a halt.   

In short, the defining reality of our entire criminal-justice machinery is that we are a chronically lawbreaking society. Although that fact pervades Mis­demeanor­­land, the book seems at pains to avoid confronting it. The meticulous descriptions, mesmerizing plethora of flow charts, statistics, graphs, and excessive recourse to high theory and socio-jargon distract from some fundamental questions that the author touches on only superficially and on which she never quite gets her story straight. Did deteriorating urban conditions really precede the immense growth in misdemeanor enforcement, or did society just decide to come down harder on preexisting disorder? The author hints at a genuine surge in violent crime but elsewhere implies that a politically motivated vindictiveness is to blame, stating that city streets always provide “as many of these infractions as police are willing to find.” She waffles on whether subfelony lawbreaking is even worthy of concern or punishment and deploys rhetoric — describing infractions as “low level,” “minor,” and “comparatively trivial” — designed to minimize its importance. She repeatedly identifies “social control” as the system’s chief ambition, but her stance towards that goal is ambiguous and even deprecatory, as if it were vaguely sinister or not quite legitimate. She sprinkles the narrative with stock observations about the system’s negative effects on the poor and minorities (albeit while acknowledging some benefits, too), and takes note of law enforcement’s obsession with “the problem of social control of young minority men” as well as its indulgence of (presumably misguided) “general understandings about race, space, [and] class.” Yet she never elaborates on these indictments or puts them to use. She concludes with a resoundingly unhelpful bromide: “The crucial problems raised by mass misdemeanors — just as with mass incarceration — are political and social questions.”

Apart from providing a thorough and illuminating picture of an important part of the criminal-justice system and documenting the magnitude of urban lawlessness that feeds it, this book yields little payoff. It ventures no answer to the all-important question “What is to be done?” Specifically, how should the system be changed or improved? Should it be abolished in favor of something radically different? Although the author never recommends an alternative, she doesn’t advocate just giving up on the widespread lawbreaking to which the misdemeanor-processing machinery responds. She quotes a few officials who, although harboring no illusions about the system’s shortcomings, defend its existence. One asserts that “we cannot just ignore these problems with impunity.” Another insists that “we have to answer to the community.” But then what should the answer be?

In a brief final chapter, Kohler-Hausmann observes that “no philosophers or public intellectuals have, to my knowledge, offered deep, rigorous thinking about what justice demands in response to these types of low-level crimes.” This statement is dubious but also arguably looks in the wrong direction. It is ordinary people — their values, understandings, and above all their day-to-day experiences — that should guide us in deciding when and whether lawless conduct should command our serious attention and how we should respond to it.

Like many elite academics and criminal-law scholars, the author concentrates her attention on the scofflaws and reserves most of her concern for how the system treats them. And like others who tend to live in the “brownstone Brooklyn”–type neighborhoods that she admits exist on the fringes of Mis­demeanorland, she feels no pressing need to attend to the toll that chronic lawbreaking takes on the people who must live in its midst. Her reluctance to fully confront the behaviors that prompted the intensified focus on subfelonies, and how those behaviors affect city life, discourages her from grappling with an important truth: Degrees of disorder matter to the ordinary people who have to live with them every day. Rule-breaking that is trifling when exceptional or isolated can have devastating effects when commonplace. Routine exposure to antisocial behavior demoralizes, mocks standards of decency, and creates an aversive fear that promotes isolation and desolates the public square. Those who resent the wanton assault on the quality of their lives rightly demand that the guardians of public order take action.

Kohler-Hausmann insists that legal regulation and penalties are not the answer to low-level street crimes and, unsurprisingly, recommends more government services and programs to address root causes. Her preferred remedies include the familiar roster of cash assistance and other measures to help the poor. This shopworn yield from the author’s massive effort — the likelihood that these interventions would quell widespread misbehavior is virtually nil — is a let-down. It brings to mind a recent observation from University of Pennsyl­vania criminologist John Dilulio about the work of Edward C. Banfield, the masterly expositor of lower-class behavior. Banfield, he wrote, “gave no quarter whatsoever” to the notion that the social sciences, however detailed and meticulous, “could truly enlighten us about crime, . . . let alone ever craft public policy in ways that significantly ameliorated or solved social problems.” In a 1990 edition of The Unheavenly City (1968), Dilulio notes, Banfield predicted that even an “enormous increase in the amount and quality of information and analysis” would not yield solutions to social problems such as crime “that are both feasible and acceptable.” 

Kohler-Hausmann’s work is a prime illustration of how little in the way of grand reforms empirical social science, however admirably painstaking, can offer. Indeed, she doesn’t bother to recommend even incremental improvements in the criminal-justice system itself. Although she knows that tinkering with the giant misdemeanor apparatus won’t fundamentally alter the social conditions that undergird it, her failure to put her hard-won knowledge to work to think about practical reforms that might help streamline the system feels like a missed opportunity.

But the author’s biggest blind spot is the insufficient attention she pays to the informal roots of public decorum. With her focus on top-down social change, she shows no curiosity about the on-the-ground institutions and community codes, norms, and ideals of respectability that are vital to encouraging personal rectitude, discouraging antisocial behavior, fostering restraint, and keeping rule-breaking within bounds. She glancingly alludes to extra-legal sources of “interpersonal and household control” yet never acknowledges the importance of religion, intact families, and civic organizations; nor does she ascribe even in passing the epidemic of petty rule-breaking and urban disorder to their steady erosion. I could not find any mention of culture, and the word is not in the index. Which brings us back to the Swiss. Although Americans will never be Swiss, our country would benefit from a more Swiss sensibility. It would also benefit from a greater interest from people like Kohler-Hausmann in how we can foster that sensibility, or recover some of what we used to have. One looks in vain through this dense and lengthy book for any evidence of such interest.

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Amy L. Wax is the Robert Mundheim Professor of Law at the University of Pennsylvania Law School.

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Books

Law and Disorder

Amy L. Wax reviews Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing, by Issa Kohler-Hausmann.

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Letters

Letters

Readers write in to address Kevin D. WIlliamson’s essay on Antifa and Douglas Murray’s recent comments on hate crimes.
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