Abstract
In the 1990s, New York City put Kelling and Wilson’s “broken windows” theory into practice. Premised on the idea that aggressively policing minor offenses would curb serious crime, broken windows policing made misdemeanors a priority for the New York Police Department. Scholars have devoted attention to the devastating effects this had on New York’s poorest citizens, but in Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing, Issa Kohler-Hausmann asks an important question—where did those arrested people go?
Her answer is “misdemeanorland”, which she defines as “a jurisdictional and physical space where these cases are processed” (p. 3). Her work is a welcome addition to analyses of US criminal justice. It addresses a scholarly blind-spot by studying how New York’s courts responded to this shift in policing. The book’s central contribution is that in the broken windows era, New York’s lower courts evolved to serve social control functions that have little to do with adjudicating guilt or innocence. In place of an “adjudicative model”, courts adopted a “managerial model” that empowers court actors to control accused misdemeanants, typically drawn from the city’s most marginalized populations, through procedural and legal tools entailing neither conviction nor incarceration. Kohler-Hausmann contends that misdemeanorland’s operations raise significant moral and political questions about criminal justice and democratic society. She writes that like other sites in the justice system, misdemeanorland “functions to either reproduce class and racial inequality or manage the effects of class and racial inequality in a punitive fashion” (p. 257).
Kohler-Hausmann’s deep dives into organizational sociology might be dense for the uninitiated, but her mixed methods design serves as the basis for powerful empirical claims. She uses city data on arrests and dispositions, analyses of criminal procedure and administration, three years of experience as an attorney in an unspecified borough, three years of rigorous ethnographic work in another, two years of periodic ethnographic work in a third, and interviews with court actors and defendants to substantiate her arguments.
Part I outlines the book’s methodological structure and explains why courts adopted the managerial model. Kohler-Hausmann first outlines the history of broken windows policing in New York and the disproportionate impact it had on the city’s impoverished communities. But while the city’s misdemeanor arrest rate quadrupled from 1980 to 2010, the broken windows model offered no prescription on the role of courts. Kohler-Hausmann shows that courts did not respond to this influx of arrestees by adopting an assembly-line model of justice channeling defendants to conviction. Rather, convictions declined and dismissals and non-criminal violations rose as misdemeanor arrests skyrocketed. Courts focused on supervising and managing alleged misdemeanants by determining whether each defendant was a “manageable person” (p. 72). The shift to this managerial model was driven by resource constraints and docket growth. Litigating every case was impossible, so courts began reviewing defendants’ records of past interactions with the justice system to evaluate their rule-abiding propensities and determine what degree of control they required.
While Part I outlines why misdemeanorland adopted the managerial model, Part II illustrates how by detailing how the intricate legal machinery of New York’s lower courts relies on the tools of marking, procedural hassle, and performance to appraise misdemeanants’ rule-abiding propensities and control them accordingly. Marking constitutes the generation of records about an individual’s encounters with the justice system, including cases ending in dismissal, that are used to determine his or her manageability. Marks can pile up for residents of highly policed neighborhoods, making subsequent interactions with misdemeanorland less about their actions and more about the ungovernable disposition suggested by their accumulated marks. Procedural hassle refers to the “burdensome experiences and costs attendant to arrest and case processing” (p. 183). Defendants can spend days in crowded, uncleaned cells and booking stations as they await arraignment. Cases often remain open for months or years, compelling defendants to make frequent court appearances that might result in substantial childcare costs or job loss, while prosecutors and judges keep tabs on them. Lastly, performance involves the evaluation of defendants’ potential to be law-abiding based on their capacity to meet the court’s demands such as completing treatment programs, following orders of protection, or simply coming to court on time. These tools enable judges and prosecutors to determine an individual’s governability, monitor them over extended periods, and tailor sanctions to their perceived disposition.
Misdemeanorland is a meticulously researched and insightful book offering many scholarly contributions, of which I will highlight only two. First, while studies of criminal justice administration often emphasize the system’s front-end (policing) and back-end (prison), the connective role courts play is understudied. Kohler-Hausmann uncovers innovative ways court actors, especially prosecutors, monitor citizens. Second, the book demonstrates that a scholarly emphasis on mass incarceration overlooks how the justice system penalizes, stigmatizes, and surveils individuals who never end up behind bars. While lower courts may not produce many carceral sentences, they exert social control over marginalized populations by subjecting them to onerous procedural demands and monitoring them for compliance.
However, Kohler-Hausmann’s work contributes to scholarship on courts that could have been used to elaborate and extend her arguments. Particularly, she could have engaged with ethnographies of what she terms “felonyland”, or felony courts, including Nicole Van Cleve’s 2016 study in Chicago. Comparing New York’s misdemeanorland to Chicago’s felonyland may have uncovered similar practices across urban jurisdictions and levels of the judicial system. Further, in emphasizing the distinction of mass misdemeanors from mass incarceration, Kohler-Hausmann overlooks opportunities to highlight dynamics contributing to both phenomena. Specifically, her findings complement Loïc Wacquant’s (2009) claims that prisons and the marginalization of segregated urban spaces work conjointly to sustain systems of economic and racial inequality. More thorough consideration of research on urban political economy and criminal justice could have shed light on how the politics fueling mass misdemeanors and mass incarceration are related.
Several scholars have explored the proliferation of various non-carceral sanctions used by criminal justice actors to control poor populations (see Harris, 2016 on court-ordered monetary sanctions; Beckett and Herbert, 2009 on “banishment” laws). Misdemeanorland offers an important addition to this scholarship, as Kohler-Hausmann uncovers legal tools that enhance the social control power of courts to monitor the poor without locking them up. But by overlooking this related research, she downplays the breadth of this larger trend and misses opportunities to expose dynamics underlying it. This could have highlighted ways in which mass misdemeanors is a distinctive problem from mass incarceration.
While these literatures are not fully incorporated into Kohler-Hausmann’s analysis, their absence does not diminish the fact that Misdemeanorland is a valuable contribution to research on the criminal justice system. It will be useful to scholars interested in criminal court operations, law and inequality, social control, and criminal justice administration. Misdemeanorland would be an excellent resource for graduate courses and classes of undergraduates capable of following occasional forays into the details of organizational sociology and criminal procedure. Anyone studying how criminal courts administer justice and control marginalized populations should engage with Kohler-Hausmann’s research and would be well served to treat it as a model.