Book Review: Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing

Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing by Issa Kohler-Hausmann is a meticulous study of the lower courts in New York City during the early 2010s. Drawing on years of ethnographic fieldwork, interviews with court actors and defendants, and an array of quantitative data on police and court activities, Kohler-Hausmann wrenchingly depicts the agonies of misdemeanor processing. Rather than the standard fare of critiquing lower courts for failing to live up to the adjudicative ideal, Misdemeanorland instead considers the social control functions of lower courts. In lieu of determining factual innocence or guilt, actors in New York City’s misdemeanorland subjected defendants to ritualized hoops and hurdles designed to assess their character, manage risk, and provide some measure of control. Throughout the book, Kohler-Hausmann takes exceptional care to clarify her empirical and theoretical contributions, providing a picture of misdemeanorland that is sure to become a classic court study. In this review, I will briefly summarize each of the chapters and provide some synthetic comments on the book’s contributions and key questions for future research.

Part 1 of the book provides important introductory theoretical, methodological, and historical context. The Introduction chapter locates the object of study, placing Misdemeanorland in debates about recent transformations in U.S. policing and the role of lower courts. Kohler-Hausmann briefly reviews the impressive mixed-methods data collection effort that went into the book: 3 years of preliminary work as a practicing attorney in one New York City borough, 3 years of immersive ethnographic fieldwork in another borough, 2 years of sporadic fieldwork in a third borough, in-depth qualitative interviews with court actors and defendants, and a wealth of quantitative data on arrests and court outcomes in New York City.

Chapter 1 locates the historical origins of mass misdemeanors in Police Commissioner William Bratton’s decision to implement the “Broken Windows” policing strategy in 1994. New York City’s political elite argued that continued expansions in police force size and a new focus on low-level offenses would improve the “quality of life” for city residents and reduce more serious crime. Kohler-Hausmann traces the logic and development of this new policing model, carefully documenting how new priorities changed routine patrol activities. Throughout the 1990s and 2000s, the number of low-level police contacts increased rapidly and grew more formal, with improved tools to track individuals’ law enforcement contacts. Between 1980 and 2010, misdemeanor arrests expanded fourfold, with possession of marijuana arrests driving the largest increases from the mid-1990s onward (and leading the declines in misdemeanor arrests after 2010). Furthermore, these arrests were highly socially concentrated, with the modal arrestee a Black (and, to a lesser extent, Latino) young man from an economically marginalized neighborhood. As this new flood of cases entered misdemeanorland, court actors were increasingly privy to information about individuals’ police contacts—and could be marked, processed, and judged accordingly.

Chapter 2 outlines the primary thesis of the book: Lower courts responded to this transformation in policing by adopting a managerial model, which uses the court process to monitor and assess individuals’ ability to meet the demands of the law. This vision of the courts is offered as a contrast to both the ideal adjudicative model, wherein the purpose of the courts is to determine guilt or innocence and ascribe the proper punishment, and the standard critique of misdemeanorland as “assembly-line justice,” in which cases are dispatched en masse with little individualized treatment. Kohler-Hausmann shows extensive individualization of justice—but rather than measuring cases on their factual and legal merits, defendants are judged by their past records and ability to meet court burdens. As evidence, the chapter marches through a series of statistics to show that as the volume of misdemeanor cases grew in the 1990s and 2000s, the percentage of those ending in convictions declined as both dismissals and noncriminal violations (especially “disorderly conduct”) increased. By the 2000s, less than 30% of annual dispositions ended with a misdemeanor conviction. In addition, misdemeanor convictions were increasingly concentrated among those with prior criminal records and pending cases. Kohler-Hausmann triangulates these results with qualitative data, showing how prosecutors’ standard plea deals formally weighed the number of record marks.

Chapter 3 begins Kohler-Hausmann’s argument about why the managerial model developed in New York City, drawing on interviews with attorneys and judges and quantitative data on caseloads and court resources. The chapter argues that the managerial model emerged as a collective organizational response to the pressures produced by Broken Windows policing, the lack of guidance regarding how the courts ought to respond to “quality of life” crimes, and the practical constraints of the court (including limited physical space, personnel, and budgets). Drawing on organizational sociology concepts, Kohler-Hausmann posits that we should see the law not as a set of rigid rules, but rather a set of resources that actors in the legal field can draw upon. In addition, Kohler-Hausmann highlights how prosecutors wield increasing power in this field, serving as quasi-inquisitors rather than equal sparring partners (on this theme, see also Lynch, 2016; Pfaff, 2017).

Part 2 of the book more fully develops the three “tools” of lower courts: marking, procedural hassle, and performance. Chapter 4 focuses on marking, or the production and evaluation of court records, bridging quantitative analyses, interviews with court actors, and defendants’ stories. Kohler-Hausmann elaborately traces each step through the court system, describing how marks on defendants’ records accrue (especially when they live in heavily policed neighborhoods) and shape court actors’ perceptions of their deservingness. Chapter 5 tackles procedural hassle, or the hurdles defendants face in meeting the demands of the court, which can extend for months (or even years). Drawing predominantly on interviews with defendants and courtroom observations, Kohler-Hausmann documents humiliating arrest and detention practices, stressful and degrading waits for court hearings, and juggling attendance at repeated court hearings with work and family obligations. Chapter 6 takes on the final technique, performance, or the court’s evaluation of the defendant’s meeting of the various demands, including making court dates, avoiding arrest, completion of programs (like drug treatment, community service, domestic violence classes, etc.), abiding orders of protection (no matter the preferences of the complaining witness), and more. Across the chapters, Kohler-Hausmann stresses how the burdens of misdemeanorland, together with the “trial penalty” (i.e., facing a more serious sentence at trial), make the costs of fighting a case (or invoking one’s formal legal and procedural rights) heavily outweigh the benefits, even when defendants believe that they are innocent.

Finally, in the Conclusion, Kohler-Hausmann summarizes the pay-off for her theoretical and empirical account of misdemeanorland. Like many punishment scholars, she argues that what is perhaps most distressing about the lower courts in New York City is the way that they affirm and deepen historical patterns of race and class stratification, giving so little dignity and compassion to the most marginalized in society. Speaking first as a lawyer, Kohler-Hausmann argues that her findings show that lower courts cannot and will not serve as meaningful checks on police discretion and abuse of authority. Because rights and process are so rarely invoked by defendants, the courts preform little oversight of the constitutionality of police stops, searches, and arrest. Thus, other political and organizational mechanisms must take up this charge. Kohler-Hausmann then wrestles with the policy question of how lower courts ought to respond to the massive number of low-level arrests for (alleged) conduct that is illegal but not particularly harmful and typically associated with the conditions facing people in deep poverty. While taking seriously the potential that some level of policing and criminal prosecution of such cases may contribute to public safety in the most marginalized communities, Kohler-Hausmann notes that the costs of this strategy also fall to the same communities—and exact a very heavy toll. Thus, as the book concludes, to reckon with the problem of mass misdemeanors is to engage with critical political questions about how the United States responds to social marginality. The first step, according to Misdemeanorland, is for citizens to truly see how we police and punish low-level offenses.

As is clear from the summary above, Misdemeanorland is a rigorous, deeply thoughtful, and novel account of the workings of lower courts in New York City. Here, I want to highlight two of the book’s signature contributions—one empirical and the other theoretical and methodological. First on the empirical front, the book provides a gripping depiction of the abject pettiness of many of the cases processed in New York City’s lower courts, which are predominantly crimes of the poor, and the relative viciousness of the legal system in responding. Some of the most absurd examples included in the book include stealing a package of Cracker Barrel cheese, turnstile jumping, taking up too many seats on the subway, and possession of a box-cutter knife (claimed by the police to be a prohibited “gravity knife”). While it is common in the criminal justice field to talk of “over-criminalization,” these accounts provide a gritty depth to the charge and explicate the dire consequences even these “minor” infractions can accrue for individuals, including repeat humiliation, lost jobs and housing opportunities, family and financial strain, months of waiting with legal vulnerability, and—of course—criminal convictions and all their attendant consequences. Throughout the book are tragic injustices of lives seriously derailed or even destroyed for the pettiest of crimes.

Second, the book breaks new ground for legal theorists and empirical legal scholars in outlining the purposes and functions of misdemeanor courts, while also serving as a deeply researched sociological account of organizational behavior. Misdemeanorland thus serves as an invaluable model for socio-legal scholarship that places equal weight on carefully articulated theoretical motivations and expectations, meticulous data collection and analysis, and thoughtful normative and policy conclusions. The book shines at bringing a number of sociological tools to the law (e.g., the concept of the legal field, relational ethnography, and a “cultural toolkit” framework). Perhaps most critically, Kohler-Hausmann insists that we should see the rules and processes of the court not as “duty-imposing” constraints that determine lawyers’ and judges’ goals and actions, but rather as “power-conferring” rules that provide strategic opportunities for actors negotiating within the legal field. This reframing has the potential to substantially influence how socio-legal scholars understand and study the court.

However, Misdemeanorland is more limited in its explicit engagement with (or critique and extensions of) some of the relevant sociological literatures, including debates over qualitative methods and the role of race in the criminal justice system. For example, the methodological details for the qualitative data collection and analysis employed in Misdemeanorland are lighter than is now expected in rigorous empirical work in sociology and make it difficult to evaluate (and replicate) some of the qualitative material. There is no methodological appendix, for example, or any details on how many interviews were conducted with each court group and how those transcripts were analyzed. In addition, the book quickly reviews a large literature on the effectiveness (or lack thereof) of broken windows policing and recent reform processes in New York City, without fully tracing these themes or articulating how the findings of Misdemeanorland should influence these scholarly debates. Similarly, there is a missed opportunity to explicitly corroborate, extend, and/or challenge the conclusions of other recent court ethnographies (e.g., Van Cleve’s [2016] account of racialized punishment in Chicago’s felony courts).

These limitations, however, should not detract from the trenchant analysis of the lower courts offered in Misdemeanorland. Future researchers might explore both how managerial justice shapes the work of lower courts in places other than New York City and the relationship between misdemeanor and felony courts. As Kohler-Hausmann notes, New York City may well be exceptional in some respects. Certainly, the massive drop in felony cases and imprisonment rates as early as the 2000s is unusual. The rapid proliferation of “programs” or alternative sanctions in New York City may have been unique as well. This suggests a series of research questions about the reach of misdemeanorland: How much does location, court volume, and local culture influence the adoption of managerial justice verses other court logics? How can scholars measure variation in courts’ use of the three techniques outlined by Kohler-Hausmann? How much do these techniques and the managerial model extend to felony courts? And what is the connection between the transformation in misdemeanorland and mass incarceration? Kohler-Hausmann shows that most of the adults arrested in the 2000s and early 2010s did not have a felony conviction before arrest and would not garner one within the next 3 years, yet there are also examples of misdemeanor cases derailing the lives of defendants under supervision for felony offenses or with open felony cases. This suggests important questions about the interconnections between misdemeanor and felony courts and the role of both in producing mass punishment. It is my hope that the recent slate of court ethnographies will revive this classic area of socio-legal study and lead to a much richer understanding of the shallow and deep ends of excessive criminalization, policing, and punishment.