Public Thinker: Issa Kohler-Hausmann on Misdemeanors and Mass Incarceration

Issa-Kohler-Hausmann

This article was originally published by Public Books and is reprinted here with permission.

Thinking in public demands knowledge, eloquence, and courage. In this new interview series, we hear from public scholars about how they found their path and how they communicate to a wide audience.

While most critics of the American criminal justice system condemn mass incarceration, fewer have turned a critical eye to practices that result in punishment other than imprisonment. In Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing, Issa Kohler-Hausmann argues that we must understand non-carceral policing and punishment in order to fully appreciate the reach of the American criminal justice system.

She focuses on the rapid expansion of these practices in New York City during the early 1990s, following the introduction of a new policing regime targeting allegedly disorderly conditions throughout the city. While felony cases had outpaced misdemeanor ones in the city’s criminal courts prior to the implementation of this regime, misdemeanors—and especially crimes like possessing marijuana or jumping the subway turnstiles—increased dramatically and far outpaced felonies from the mid-1990s to the present.

This growth in misdemeanor arraignments, Kohler-Hausmann observes, has produced a new model of criminal law administration. Rather than turning on questions of guilt or innocence, the “managerial model” uses criminal records, procedural hassles, and behavioral evaluation to achieve social control over the tens of thousands of people annually ensnared by the city’s misdemeanor courts. These practices disproportionately burden low-income communities of color, but imprisonment or even formal convictions are rare.

Kohler-Hausmann is an associate professor of law and sociology at Yale University. In May, we met at a café near Washington Square Park to discuss her new book, the legacy of Broken Windows policing, and the politics of criminal justice reform. The interview lasted an hour and has been significantly edited for length, clarity, and precision.


Jackson Smith (JS): Most of the infractions adjudicated in “misdemeanorland” are not violent, but violent crime does appear to haunt misdemeanorland. As you note in the book, it is at the core of the Broken Windows theory of policing. Could you speak to how conceptions of violent crime shape misdemeanorland, even if violent crime is not what is being adjudicated there?

Issa Kohler-Hausmann (IK): Haunting is a great way of putting it. Violent crime haunts misdemeanorland in a couple of ways. First, policing is concentrated in spaces with more crime. The police will always say that and they are mostly right. I don’t think that necessarily answers the fairness question, or the justice question, but let’s just say for the sake of argument that this is true. The important thing to remember is that what Broken Windows policing is doing is essentially casting a very, very wide net over those spaces and essentially asking everyone who is hauled in to prove that they are not a bad guy. It feels acceptable to have this vast dragnet, because we essentially think it is fair to put the burden on the people who live in high-crime neighborhoods to prove that they are not high-crime people. This is acceptable because they are black and brown people.

The other point is that people will ask, “Well, isn’t it true that this policing diminished serious crime in New York?” The answer is that nobody knows and certainly nobody knows the magnitude and the extent to which this may be true. You also have to think about the mechanism for reducing crime. Is it by virtue of bringing in a lot of people for misdemeanors? By definition, somebody who is arrested for a misdemeanor is not arrested for a felony. If they stopped you for smoking weed and found a gun on you, your top arrest card would be a felony, not a misdemeanor.

The idea is to arrest a lot of people who might grow up to be serious felons, but the mechanism has always been a little unclear to me. The data that I show in the book is that very few of the people arrested for misdemeanors end up with a violent felony conviction after a number of years. This is unsurprising given that we were arresting 100,000–150,000 people at the height of it—that would be a lot of people who would become serious felons.

JS: The first part of your book outlines how and why misdemeanor arraignments reached those peaks of 100,000–150,000 per year in New York City during the 1990s. You trace what you call the “managerial model” of criminal court adjudication back to the rise of Broken Windows policing, but also to the limits of the due process revolution. What can the rise of mass misdemeanors tell us about the unintended consequences of such policy reforms?

IK: What is interesting about misdemeanorland is that the whole thing was sort of unintended, but there were theoretical tenets that underspinned the Broken Windows policing experiment. First, the theory says that people inherently care about disorder, and they might care about it just as much as—if not more than—serious violent crime. Second, it says that there is a developmental sequence between tolerating low-level disorder and the conditions under which serious street crime and violent crimes flourish. The claim is that if you enforce basic norms of civility, people will not think that they have a license to do very serious things.

But no one seemed to give any thought whatsoever to what would happen if you essentially doubled the volume of human bodies moving through a system that is supposed to do adjudicatory work. This system is charged with using the pretty finicky rules of criminal procedure that were established in the due process revolution. It turns out those processes are costly. They involve using resources and time, and people are always going to look for ways not to use resources and time—especially if they are overburdened.

So it was interesting to me to not see any real forethought as to what might happen or even what should happen to these cases. I have not seen anyone write about people who piss on the sidewalk, jump the turnstile, take candy bars from bodegas, walk into buildings that they are not authorized to walk into, or have small amounts of narcotics or marijuana. The people charged with actually doing something with these cases had to make a series of adjustments. They had to solve a series of problems—basically, what do I do with all these cases when I can’t actually adjudicate them? I can’t actually use the rules of criminal procedure to properly figure out if this person did in fact piss on the sidewalk, jump the turnstile, take the candy bar from the bodega, or push or harm or strangle or threaten to hurt this person. It turns out that instead of figuring out if it happened in the past, they could use a series of tools to try to figure out if they think it is likely to happen again in the future.

JS: That temporal orientation is very interesting to me. The penal law looks backwards, as you note in the book, but the “managerial model” evaluates a defendant’s future behavior. This struck me as consistent with the temporality of policing, which also looks forward to essentially safeguard public order. Did the increase in misdemeanor arrests entail a “police-ification” of the lower criminal courts? To what extent does policing dictate the terms of engagement in misdemeanorland?

IK: This is why I spent extended time in the first part of the book talking about the logic of Broken Windows policing. The “managerial model” was an acceptable solution to the daily problems faced by legal actors, because it was quite contiguous with and complementary to the policing model that generated it. It is an ingenious set of answers for dealing with all those cases in a way that did not create conflict with the organization sending you all those cases. It actually vindicated the very logic of that organization. For example, you are a young black man in a high-crime neighborhood, you are smoking weed, or maybe I just put my hands in your pocket and found weed. I don’t know what you are up to, so I demand that you come into this space and prove to me that you are not up to no good. That logic is entirely consistent with the policing model, as you said.

JS: I want to switch directions now to discuss the role of fees and fines in misdemeanorland, as my own research concerns the role of money in what you call “non-carceral criminal justice encounters.” There is a popular understanding that fees and fines reveal a hidden profit motive. Your research complicates that narrative, however, because the immense volume of misdemeanor arraignments also entails an immense public cost. It costs a lot of money to cast that very wide net. Moreover, the lack of public resources apportioned to misdemeanor courts casts doubt on this idea that fees and fines are purely motivated by profit—the costs appear to outpace any revenue generated. In lieu of a profit motive, what can your concepts of “procedural hassle” and “performance” tell us about the logic of misdemeanor fees and fines? Is there something like an austerity logic operative here, such that defendants and their communities are made to bear the costs and responsibilities for their own punishment?

IK: The symbolic logic of profit might be there, but that doesn’t mean it is effective. It is very important to realize this disconnect. That is not to say that it is not punitive, unfair, and burden-shifting. It is certainly a regressive tax on the poorest communities, because the most heavily policed places are where you are going to find infractions like dogs not wearing a leash and public consumption of alcohol, because it is exactly in those places that you have the most police officers wandering around seeing those things. As we know, there is a hell of a lot of Sauvignon Blanc sipping in Prospect Park and very few summonses being issued there. But I think you are right to question this fiscal motive.

As the name of a great article says, you can’t get blood from a stone.[1.See Alexes Harris, Heather Evans, and Katherine Beckett, “Drawing Blood from Stones: Legal Debt and Social Inequality in the Contemporary United States,” AJS, vol. 115, no. 6 (May 2010).] The number one conviction in New York City for decades has been disorderly conduct. Disorderly conduct entails a mandatory court surcharge of $120. I would be shocked if more than 30 percent can or do pay it. If you refuse to pay and there is a finding that you are willfully refusing to pay, you could be subject to jail time, but usually what happens is that civil judgment is entered and civil judgment basically just ruins people’s credit. What we are essentially doing is ruining the credit of people who are already impoverished. It is a really stupid thing to do, but it is not successfully getting blood from a stone. We are saying, “We’re not going to pay for courts; you have to pay for them.” But we end up entangling people in a web of debt, a web of being out-of-compliance with legal rules and orders. We push you further outside the boundary of civic inclusiveness and make you an outlaw, make you out of compliance, and express that you are not a deserving taker of state services. You are a special type of person that does not even deserve the standard things of the state.

JS: Many of the problems in misdemeanorland that you identify throughout your book stem from the outsized power of prosecutors, so I am curious what you make of the nationwide movement to elect progressive prosecutors in local jurisdictions. Do you see it having any impact on what happens in misdemeanorland?

IK: What I say about prosecutors is a line I read somewhere about it being more power than a bad man should have or a good man should want. Once people are given power they tend to think they are the right ones to have it. Very few people in power think, “You know what, I should have some of my discretion taken from me.”

Take [New York County District Attorney] Cy Vance. Here is a guy who for years had probably the most punitive offer policies in the five boroughs. According to my estimates, you had a higher probability of being convicted and going to jail for turnstile jumping in Manhattan than in any other borough. He is now claiming that he will decline to prosecute those cases, which is great. But he is fighting tooth and nail against discovery reform, which would actually give leverage to the other side. In terms of legal reform, we need to give more leverage points to defense attorneys. Prosecutors who fight against that don’t get to call themselves progressive.

Having said that, does the view of the person in power matter? Of course it matters, so I am happy that there is light on this because, as we know, district attorney races have been largely uncontested.

JS: On that note, what is your appraisal of the broader movement for criminal justice reform?

IK: I am often leery of our newfound alliance with the Right on Crime people. What we have in places like Brownsville is the thoroughly anticipated upshot of hundreds of years of racial injustice and a deeply unequal economic system that actually does not care about people who have been left behind. What we need is a huge investment in fundamentally rupturing intergenerational poverty. That is where we are going to part ways with the Right on Crime people, because it is not going to be cheaper and might even be more expensive. Ultimately, we need a Marshall Plan for the ghetto. We need to be willing to put in massive amounts of resources into addressing the very real social problems in many of the heavily policed spaces.

Crime is a real problem because violence disproportionally affects the most vulnerable communities, mainly low-income and minority communities. Violence is a terrible intergenerational harm, and we need to start by recognizing that. But that is why we need to simultaneously be fighting for distributive justice, a union movement, school reform, and the basic social good. Because those are social controls, they are just the benign ones that we think are good.

 

This article was commissioned by Caitlin Zaloom.

American prison system debate reaches new level

Hagan_Who_F12Orange Is the New Black, a comedy-drama series based on Piper Kerman’s memoir of the same name, recently hit the screens of Netflix users, receiving widespread critical acclaim. The show, revolving around Kernan’s sentence in a women’s federal prison, sheds light on social structure, rules, culture, and overall the experiences of the inmates in U.S. prisons.

Kernan, now a board member of the Women’s Prison Association, recently discussed her experience and suggestions for changing the American prison system on NPR’s Fresh Air. That same week, U.S. Attorney General Eric Holder stated that the U.S. has an “unnecessarily large prison population,” calling the system “both ineffective and unsustainable.”

While the consensus that change is necessary is spread across party lines, the debate among lawmakers over what to do and how to do it is heavy. One certainty is, however, that the conversation has reached a national level, and an understanding of the U.S. prison system is becoming increasingly necessary.

In Who Are the Criminals?, John Hagan argues that the recent history of American criminal justice can be divided into two eras—the age of Roosevelt (roughly 1933 to 1973) and the age of Reagan (1974 to 2008). A focus on rehabilitation, corporate regulation, and the social roots of crime in the earlier period was dramatically reversed in the later era. In the age of Reagan, the focus shifted to the harsh treatment of street crimes, especially drug offenses, which disproportionately affected minorities and the poor and resulted in wholesale imprisonment. At the same time, a massive deregulation of business provided new opportunities, incentives, and even rationalizations for white-collar crime—and helped cause the 2008 financial crisis and subsequent recession. The time for moving beyond Reagan-era crime policies is long overdue, Hagan argues. The understanding of crime must be reshaped and we must reconsider the relative harms and punishments of street and corporate crimes. In a new afterword, Hagan assesses Obama’s policies regarding the punishment of white-collar and street crimes and debates whether there is any evidence of a significant change in the way our country punishes them.

Sykes_SocietyThe Society of Captives, first published in 1958, is a classic of modern criminology and one of the most important books ever written about prison. Gresham Sykes wrote the book at the height of the Cold War, motivated by the world’s experience of fascism and communism to study the closest thing to a totalitarian system in American life: a maximum security prison. His analysis calls into question the extent to which prisons can succeed in their attempts to control every facet of life—or whether the strong bonds between prisoners make it impossible to run a prison without finding ways of “accommodating” the prisoners. Re-released fifty years later, The Society of Captives will continue to serve as an indispensable text for coming to terms with the nature of modern power.

For further reading:

When Brute Force Fails: How to Have Less Crime and Less Punishment by Mark A. R. Kleiman
Games Prisoners Play: The Tragicomic Worlds of Polish Prison
by Marek M. Kaminski
Prison Religion: Faith-Based Reform and the Constitution by Winnifred Fallers Sullivan