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Wednesday, December 12, 2018
A Critical Eye on the Implications of Misdemeanor Crimes
In her most recent book, Professor Issa Kohler-Hausmann '08 turns a critical eye to the often overlooked topic of misdemeanor crimes. Over the past several years, she has studied the Broken Windows police tactics of the early 1990s in New York City, which held that rigorous enforcement of low-level offenses was the key to urban order and crime suppression. There was little information on what happens to the hundreds of thousands of people arrested as part of this strategy once they reached criminal court. In Misdemeanorland, Kohler-Hausmann argues that lower courts in the era of Broken Windows largely abandoned the adjudicative model of criminal law administration in which questions of factual guilt and legal punishment drive case outcomes.
Q: Few people have closely examined punishment other than imprisonment in the criminal justice field. Why did you decide to tackle this?
IKH: The short answer is that there are just more misdemeanor arrests than felony arrest — a lot more. I was curious if the things that we know about how felony criminal courts work or how inequality is reproduced through criminal convictions or prison are the same on the lower end of the criminal justice system. Mass incarceration has garnered substantial public and scholarly interest over recent decades. As well it should; it is an urgent political and moral question. But most people who encounter the criminal justice system will encounter it through a citation for a municipal infraction or a misdemeanor arrest, not through a felony arrest. Prison is not even the most common outcome from a felony arrest. So my research question started out incredibly broadly, asking what was happening in New York City’s lower criminal courts after they were flooded with arrests from its signature policing tactics and how do defendants experience the process?
Q: How did your time practicing in New York State handling issues of felony and misdemeanor crime shape your scholarly interests?
IKH: It provided me a first hand experience of the tensions and demands that legal actors face on a daily basis in court, how uncertainty, resource and time constrains, and strategic considerations vis-à-vis other actors in the criminal justice system play out to create certain predictable patters. For example, one critique that you hear a lot in lower criminal courts is how long cases drag out. Working in court you realize that both sides have opportunities to engage in delay for strategic purposes at different times and under different conditions, and that often the only leverage the defense has is to refuse a plea offer and wait.
Another important thing that I leaned was to be attentive to the diverse ways that entanglement with police and courts affect people. We have thought a lot about how the permanent mark of a felony conviction — the lasting stigma that can impede employment, housing, and family formation. But much larger swaths of people experience temporary markers in the form of an open case or conditional dismissal, the prolonged hassle of going back and forth to court, the personal degradation of arrest and pre-trial detention, or losing jobs because of court dates.
Q: How has having a background in both criminal law and sociology influenced the way you examined the issues in your book?
IKH: As a sociologist, I was trained to investigate the substantive meaning of quantitative data and trends. The human costs I mentioned in the prior answer would be invisible if you just looked at the formal legal outcome of the case. Most misdemeanor cases in New York City end in some form of dismissal, so unless you are attentive to those qualitative dimensions that are not captured by formal legal categories you will miss it. The fact that the criminal conviction rate from misdemeanor arrests went down substantially over the Broken Windows era does not mean that that the courts were not exercising a form of social control over the populations that flowed through their doors. The use of qualitative data in the book was to explain how precisely people experienced the penal power of the state.
Q: What do you hope people take away from reading Misdemeanorland?
IKH: The study of mass misdemeanors — like that of mass incarceration — ultimately points out larger political questions about what role we, as a democratic society, will countenance for criminal justice in establishing social order. The grand majority of the misdemeanor arrests over the past two decades have been of Black and Hispanic men. The Broken Windows policing tactics are spatially concentrated in the city’s poor and minority neighborhoods. To the extent that these policing techniques bring down violent crime in those spaces, which is of course debated, these communities reap the benefit of lower violence and social harm. But they also bear the costs. And the costs are tremendous.
As long as we rely on the criminal justice system as the primary institution of social control over these spaces that will continue to be the case, and we will create a substantial population that is, to use Megan Comfort’s evocative phrase, “at once legally free, but palpably bound.” And this, I think, is really the crux of the policy implications I draw from this research.