Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing
BY ISSA KOHLER-HAUSMANN
PRINCETON UNIVERSITY PRESS, 20l8
AUTHOR. Professor of Law, University of California, Irvine School of Law. Special thanks to Guy-Uriel Charles, Sharon Dolovich, Mona Lynch, and Doug Nejaime. My thanks also to the editors of the Yale Law Journal for their excellent work.
BOOK REVIEW CONTENTS
INTRODUCTION 1650 1. THE MISDEMEANOR CHALLENGE IN NATIONAL PERSPECTIVE: 1659 DEVALUING DUE PROCESS FOR THE DISADVANTAGED II. NEW YORK CITY 1665 A. The Legal System's Response to Broken-Windows Policing 1665 B. Mapping Managerialism: Marking, Procedural Hassle, and 1672 Performance III. THE PUNITIVE SPECTRUM: FROM MANAGERIALISM TO CONVENTIONAL 1677 PUNISHMENT IV. AN ADVERSARIAL TAKE ON THE MANAGERIAL COMPROMISE 1682 A. Gideon in Misdemeanor Processing 1683 B. Prosecutorial Complicity in Broken-Windows Policing 1686 C. The New York Adversarial System at Work 1689 V. MISDEMEANOR JUSTICE? 1692 A. The Equitable Importance of the Rule of Law 1694 B. Managerial Injustices 1697 CONCLUSION: THE LENIENCY FALLACY 1702 INTRODUCTION
Over the past few years, misdemeanor policing and low-level courts have increasingly become the subject of legal scrutiny, social unrest, and racial distrust. Across the country, civil rights advocates are suing municipal courts for operating as barely disguised regressive tax operations, in a system that the New York Times has labeled "cash-register justice." (1) Bail reform is sweeping the nation in large part because cash bail in low-level cases is increasingly understood as a form of unconstitutional discrimination against the poor. The anger of the Black Lives Matter movement is heavily fueled by the experience of order-maintenance policing--stops and arrests for minor offenses such as loitering, trespassing, and disorderly conduct. (2) Michael Brown, after all, was originally stopped merely for jaywalking in the streets of Ferguson before police officer Darren Wilson shot and killed him. (3) And in 2015, the Republican-controlled Senate Judiciary Committee held a hearing entitled "Protecting the Constitutional Right to Counsel for Indigents Charged with Misdemeanors," in which committee chair Senator Chuck Grassley lamented that
many states are not providing counsel as the Constitution requires. It is a widespread problem. In reality, the Supreme Court's Sixth Amendment decisions regarding misdemeanor defendants are violated thousands of times every day. No Supreme Court decisions in our history have been violated so widely, so frequently, and for so long. (4) The stakes of this debate could not be higher. Misdemeanors represent eighty percent of state criminal dockets. (s) Approximately thirteen million misdemeanor cases are filed nationally every year, compared to three or four million felony cases. (6) The misdemeanor process is the governance vehicle through which the U.S. penal system most frequently exercises its coercive police and punitive powers, usually over the most economically and racially vulnerable subjects. This is how the criminal system engages with most people, most of the time. Yet it does so in ways that are profoundly attenuated from the basic procedural requirements and substantive justifications of criminal law. Light on due process, heavy on informal controls, and relatively uninterested in evidence or culpability, the petty-offense process does the work of criminal justice in violation of key rules governing the exercise of state criminal authority.
There are numerous disturbing features of this phenomenon--it criminalizes the poor, convicts the innocent, and often violates the Constitution. But the foundational questions run deeper. The misdemeanor process sits on a democratic fault line of the criminal system as a thinly regulated exercise of police power that persistently resists many basic legitimating constraints of state penal authority and constitutional democracy. It is aggressively stratifying, aimed disproportionately at the poor and people of color while contributing heavily to wealth-based and racial inequality. Enormous, decentralized, and opaque, the misdemeanor process is at once highly influential and lacking in democratic accountability.
For decades, the legal academy paid scant attention to this vast arena of law, policy, and practice. But that has recently changed. In 2018, two full-length books on the subject were released, (7) the first since Malcolm Feeley published his seminal work, The Process Is the Punishment in 1979. (8) Also in 2018, Boston University held a two-day symposium (9) that generated nine articles on "the Misdemeanor Machinery," (10) while at least four additional law review articles explored important aspects of the petty-offense process. (11) The year before, in 2017, scholars published over fifteen more pieces. (12) Subjects ranged from cash bail to debtor's prison to wrongful convictions.
This cornucopia of new scholarship represents the initiation of a long overdue project: a rigorous, academy-wide evaluation of the largest component of the modern U.S. criminal system. (13) It is a component that has been intellectually overshadowed by the excesses of its felony counterpart; the legal academy has spent decades unpacking the theoretical challenges and programmatic weaknesses of mass incarceration. Finally, misdemeanors are getting their due.
Issa Kohler-Hausmann makes an important contribution to this burgeoning discourse in her book Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing. The book is a deep sociological dive into the workings of New York City's lower court system, which processes hundreds of thousands of misdemeanor cases every year. Kohler-Hausmann uses the advent of broken-windows policing in New York in the 1990s and the explosion of minor arrests that it generated to explore how that court system responded to the massive influx of cases. From 1980 to 2010, annual misdemeanor arrests in New York nearly quadrupled from 65,000 to 251,000. (14) Through detailed analysis of the routine charging, processing, and sentencing decisions made in New York courts between approximately 2000 and 2015, Kohler-Hausmann offers a nuanced view of misdemeanor punishment, finding that it is just as concerned with imposing criminal record "marks" and informal social controls as it is aimed at producing legal convictions and formal sentences. She calls this phenomenon "managerial justice," in which prosecutors and judges
seek social control by sorting and testing defendants into the future by building records on their law enforcement contacts, evaluating their rule-abiding propensities through measured compliance with a series of procedural requirements, and gradually ratcheting up the punitive response with each successive encounter or failure to live up to the court's demands. (15) Kohler-Hausmann contrasts managerial justice with what she terms the "adjudicative model," a more conventionally legalistic framework "concerned with deciding guilt and punishment in specific cases." (16) Unlike the adjudicative model, managerial justice is not particularly interested in evidence or guilt, but rather in exercising social control through "marking," "procedural hassle," and "performance." (17) As described by the book, these three practices are the primary tools through which New York legal officials track, evaluate, and control the people who pass through "misdemeanorland." These practices involve marking and tracking defendants by creating detailed criminal records and imposing demeaning experiences and onerous performances on them that the system then uses to evaluate defendants' general rule-abiding character. Managerial justice still punishes, but it often postpones or forgoes incarceration and conviction in exchange for these lighter, less formal intrusions. (18) At bottom, managerial justice is based on a "presumption of need for social control over the people who are brought from" disorderly communities into the criminal system, (19) who in turn are largely poor people of color. (20) The book's primary claim is that managerial justice, with its presumptive need for social control and its lighter punitive touch, has largely displaced the adjudicative model in New York City. (21)
The book builds upon a number of intellectual traditions. It is a welcome addition to the collateral-consequences literature, which has long noted that convictions and formal penalties are not the only punitive experience--and for misdemeanors, not even the central punitive experience--visited upon people who pass through the criminal process. As various scholars have explained, "misdemeanor prosecutions and convictions ha[ve] negative effects that reach far beyond the confines of the criminal courthouse" and "non-criminal sanctions... often overwhelm any sentence that the trial judge imposes." (22) Negative effects may include the loss of immigration status, housing, public benefits, driver's licenses, credit, and social status. (23) The punitive experience can begin as early as the initial arrest, which serves not only as an exercise of criminal police power but as "a regulatory tool--a means of monitoring, ordering, and tracking individuals. The aim of this type of [arrest-based] regulation can be quite distinct from certain criminal law concerns--adjudicating guilt or innocence, maintaining law and order, deterring crime, and meting out punishment." (24) Misdemeanorland's thick descriptions of the mechanics of social control advance this burgeoning misdemeanor literature and deepen our understanding of the many dimensions of the low-level criminal justice encounter.
Misdemeanorland also dovetails with scholarship regarding the criminalizing control exerted by poverty-oriented public institutions such as welfare offices, housing courts, and hospital emergency rooms--the so-called "criminalization...