Law Enforcement and Corrections Commons^™

Pot As Pretext: Marijuana, Race, And The New Disorder In New York City Street Policing, Amanda Geller, Jeffrey Fagan

Faculty Scholarship

Although possession of small quantities of marijuana has been decriminalized in New York State since the late 1970s, arrests for marijuana possession in New York City have increased more than tenfold since the mid-1990s, and remain high more than 10 years later. This rise has been a notable component of the city’s “Order Maintenance Policing” strategy, designed to aggressively target low-level offenses, usually through street interdictions known as “stop, question, and frisk” activity. We analyze data on 2.2 million stops and arrests carried out from 2004 to 2008, and identify significant racial disparities in the implementation of marijuana enforcement. These …

An Institutionalization Effect: The Impact Of Mental Hospitalization And Imprisonment On Homicide In The United States, 1934-2001, Bernard E. Harcourt

Faculty Scholarship

Previous research suggests that mass incarceration in the United States may have contributed to lower rates of violent crime since the 1990s but, surprisingly, finds no evidence of an effect of imprisonment on violent crime prior to 1991. This raises what Steven Levitt has called “a real puzzle.” This study offers the solution to the puzzle: the error in all prior studies is that they focus exclusively on rates of imprisonment, rather than using a measure that combines institutionalization in both prisons and mental hospitals. Using state-level panel-data regressions over the 68-year period from 1934 to 2001 and controlling for …

The Paradox Of Law Enforcement In Immigrant Communities: Does Tough Immigration Enforcement Undermine Public Safety?, David Kirk, Andrew V. Papachristos, Jeffrey Fagan, Tom R. Tyler

Faculty Scholarship

Frustrated by federal inaction on immigration reform, several U.S. states in recent years have proposed or enacted laws designed to stem the flow of illegal immigrants into the U.S. and to facilitate their removal. An underappreciated implication of these laws is the potential alienation of immigrant communities – even law abiding, cooperative individuals – from the criminal justice system. The ability of the criminal justice system to detect and sanction criminal behavior is dependent upon the cooperation of the general public, including acts such as the reporting of crime and identifying suspects. Cooperation is enhanced when local residents believe that …

Incarceration And The Economic Fortunes Of Urban Neighborhoods, Jeffrey Fagan, Valerie West

Faculty Scholarship

New research has identified the consequences of high rates of incarceration on neighborhood crime rates, but few studies have looked beyond crime to examine the collateral effects of incarceration on the social and economic well being of the neighborhoods themselves and their residents. We assess two specific indicia of neighborhood economic well-being, household income and human capital, dimensions that are robust predictors of elevated crime, enforcement and incarceration rates. We decompose incarceration effects by neighborhood racial composition and socio-economic conditions to account for structural disadvantages in labor force and access to wealth that flow from persistent patterns of residential segregation. …

Missionaries, Moral Advocacy, And The Transformation Of Police Court Procedure In London, 1876-1930, Sascha Auerbach

Studio for Law and Culture

This paper examines how informal courtroom negotiations transformed formal trial procedures, significantly expanded the social roles of local courts, and helped shape discourses of class, gender, race, and nationalism in British courtrooms. Specifically, it explores the origins, development, and impact of London’s first unofficial probation officers, the Police Court Missionaries. The introduction of these missionaries, who were paid agents of the Church of England Temperance Society (CETS), into the courts of the metropolis represented a watershed in the relationship between the state, private philanthropy, and working-class men and women. From the evolving dialogue between missionaries, working-class defendants, and magistrates emerged …

Profiling And Consent: Stops, Searches And Seizures After Soto, Jeffrey Fagan, Amanda Geller

Faculty Scholarship

Following Soto v State (1999), New Jersey was among the first states to enter into a comprehensive Consent Decree with the U.S. Department of Justice to end racially selective enforcement on the state’s highways. The Consent Decree led to extensive reforms in the training and supervision of state police troopers, and the design of information technology to monitor the activities of the State Police. Compliance was assessed in part on the State’s progress toward the elimination of racial disparities in the patterns of highway stops and searches. We assess compliance by analyzing data on 257,000 vehicle stops on the New …

Meditaciones Postmodernas Sobre El Castigo: Acerca De Los Límites De La Razón Y De Las Virtudes De La Aleatoriedad (Una Polémica Y Un Manifiesto Para El Siglo Xxi), Bernard E. Harcourt

Faculty Scholarship

Abstract in Spanish
Durante la Modernidad, el discurso sobre la pena ha girado circularmente en torno a tres grupos de interrogantes. El primero, surgido de la propia Ilustración, preguntaba: ¿En qué basa el soberano su derecho de penar? Nietzsche con mayor determinación, pero también otros, argumentaron que la propia pregunta implicaba ya su respuesta. Con el nacimiento de las ciencias sociales, este escepticismo hizo surgir un segundo conjunto de interrogantes: ¿Cuál es, entonces, la verdadera función de la pena? ¿Qué es lo que hacemos cuando penamos? Una serie de críticas ulteriores – de metanarrativas, funcionalistas o de objetividad científica – …

Street Stops And Broken Windows Revisited: The Demography And Logic Of Proactive Policing In A Safe And Changing City, Jeffrey A. Fagan, Amanda Geller, Garth Davies, Valerie West

Faculty Scholarship

This chapter examines the development of “order maintenance policing” in New York City. It studies the stop-and-frisk activities of New York City police officers by examining temporal and spatial patterns of stops from 1999, 2003, and 2006. Findings reveal that stop rates have increased by 500 percent since 1999 despite little change in crime rates Stop activity was greatest in poor and minority communities, and stop patterns were more closely tied to demographic and social conditions than to disorder or crime. The efficiency of stops, measured as “hit rates,” dropped considerably, with the sharpest declines occurring in minority neighborhoods. Overall, …

Post-Modern Meditations On Punishment: On The Limits Of Reason And The Virtues Of Randomization, Bernard E. Harcourt, Alon Harel, Ken Levy, Michael M. O'Hear, Alice Ristroph

Faculty Scholarship

In this Criminal Law Conversation (Robinson, Ferzan & Garvey, eds., Oxford 2009), the authors debate whether there is a role for randomization in the penal sphere - in the criminal law, in policing, and in punishment theory. In his Tanner lectures back in 1987, Jon Elster had argued that there was no role for chance in the criminal law: “I do not think there are any arguments for incorporating lotteries in present-day criminal law,” Elster declared. Bernard Harcourt takes a very different position and embraces chance in the penal sphere, arguing that randomization is often the only way to avoid …

Pot As Pretext: Marijuana, Race And The New Disorder In New York City Street Policing, Amanda Geller, Jeffrey Fagan

Faculty Scholarship

Although possession of small quantities of marijuana has been decriminalized in New York State since the late 1970s, arrests for marijuana possession in New York City have increased more than tenfold since the mid-1990s, and remain high more than ten years later. This rise has been a notable component of the City’s “Order Maintenance Policing” strategy, designed to aggressively target low-level offenses, usually through street interdictions known as “Stop, Question, and Frisk” activity. We analyze data on 2.2 million stops and arrests carried out from 2004 to 2008, and identify significant racial disparities in the implementation of marijuana enforcement. These …

Police And National Security: American Local Law Enforcement And Counter-Terrorism After 9/11, Matthew C. Waxman

Faculty Scholarship

This article examines three national security law challenges resulting from greater involvement of state and local police agencies in protecting national security, especially in combating terrorism: organizational challenges, accountability challenges, and institutional tensions with traditional local police functions. Each threatens the balance of security and civil liberties.

Executions, Deterrence And Homicide: A Tale Of Two Cities, Franklin Zimring, Jeffrey Fagan, David T. Johnson

Faculty Scholarship

We compare homicide rates in two quite similar cities with vastly different execution risks. Singapore had an execution rate close to 1 per million per year until an explosive twentyfold increase in 1994-95 and 1996-97 to a level that we show was probably the highest in the world. Then over the next 11 years, Singapore executions dropped by about 95%. Hong Kong, by contrast,has no executions all during the last generation and abolished capital punishment in 1993. Homicide levels and trends are remarkably similar in these two cities over the 35 years after 1973, with neither the surge in Singapore …

Street Stops And Broken Windows Revisited: The Demography And Logic Of Proactive Policing In A Safe And Changing City, Jeffrey Fagan, Amanda Geller, Garth Davies, Valerie West

Faculty Scholarship

The contributions of order-maintenance policing and broken windows theory to New York City’s remarkable crime decline have been the subject of contentious debate. The dominant policing tactic in New York since the 1990s has been aggressive interdiction of citizens through street encounters in the search for weapons or drugs. Research showed that minority citizens in the 1990s were disproportionately stopped, frisked and searched at rates significantly higher than would be predicted by their race-specific crime rates, and that this excess enforcement was explained by the social structure of predominantly minority neighborhoods than by either their disorder or their crime rates. …

Neoliberal Penality: A Brief Genealogy, Bernard E. Harcourt

Faculty Scholarship

The turn of the twenty first century witnessed important shifts in punishment practices. The most shocking is mass incarceration – the exponential rise in prisoners in state and federal penitentiaries and in county jails beginning in 1973. It is tempting to view these developments as evidence of something new that emerged in the 1970s – of a new culture of control, a new penology, or a new turn to biopower. But it would be a mistake to place too much emphasis on the 1970s since most of the recent trends have antecedents and parallels in the early twentieth century. It …

Henry Louis Gates And Racial Profiling: What's The Problem?, Bernard E. Harcourt

Faculty Scholarship

A string of recent studies has documented significant racial disparities in police stops, searches, and arrests across the country. The issue of racial profiling, however, did not receive national attention until the arrest of Professor Henry Louis Gates, Jr., at his home in Cambridge. This raises three questions: First, did Sergeant Crowley engage in racial profiling when he arrested Professor Gates? Second, why does it take the wrongful arrest of a respected member of an elite community to focus the attention of the country? Third, why is racial profiling so pervasive in American policing?

The answers to these questions are …

Social Life And Civic Education In The Rio De Janeiro City Jail, Amy Chazkel

Studio for Law and Culture

In the six weeks from mid-July to early September 1912, about a third of the 389 men whom guards escorted through the front doors of the Rio de Janeiro city jail had been arrested for vagrancy, or in Portuguese vadiagem, an infraction whose etymological connection to the word “vague” is not a coincidence. These men remained in detention for between five days and over a year, accused by arresting police officers of having committed the crime of doing nothing. As they awaited trial or, for the least fortunate, transportation to an offshore penal colony, they shared the crowded space …

Legitimacy And Cooperation: Why Do People Help The Police Fight Crime In Their Communities?, Tom R. Tyler, Jeffery Fagan

Faculty Scholarship

Past research indicates that legitimacy encourages compliance with the law. This study extends consideration of the influence of legitimacy by exploring its impact on cooperation with the police and with neighbors to combat crime in one's community. It uses a panel study design and focuses upon the residents of New York City. The study finds that legitimacy shapes cooperation with the police and has a lesser influence on cooperation with others in the community. Consistent with the findings of prior research, legitimacy itself is found to be linked to the justice of the procedures used by the police to exercise …

Punishment, Deterrence And Social Control: The Paradox Of Punishment In Minority Communities, Jeffery Fagan, Tracey L. Meares

Faculty Scholarship

Since the early 1970s, the number of individuals in jails and state and federal prisons has grown exponentially. Today, nearly two million people are currently incarcerated in state and federal prisons and local jails. The growth of imprisonment has been borne disproportionately by. African-American and Hispanic men from poor communities in urban areas. Rising.incarceration should have greatly reduced the crime rate. After all, incapacitated offenders were no longer free to rob, assault, steal, or commit other crimes. However, no large-scale reduction in crime was detected until the mid-1990s. The failure of crime rates to decline commensurately with increases in the …

Abolition In The U.S.A. By 2050: On Political Capital And Ordinary Acts Of Resistance, Bernard E. Harcourt

Faculty Scholarship

The United States, like the larger international community, likely will tend toward greater abolition of the death penalty during the first half of the twenty-first century. A handful of individual states – states that have historically carried out few or no executions – probably will abolish capital punishment over the next twenty years, which will create political momentum and ultimately a federal constitutional ban on capital punishment in the United States. It is entirely reasonable to expect that, by the mid-twenty-first century, capital punishment will have the same status internationally as torture: an outlier practice, prohibited by international agreements and …

Supposons Que La Discipline Et La Sécurité N'Existent Pas - Rereading Foucault's Collége De France Lectures (With Paul Veyne), Bernard E. Harcourt

Faculty Scholarship

We have come to know well and deploy easily the Foucauldian terms discipline and sécurité (what we now call governmentality), especially as a result of Michel Foucault's 1978 and 1979 lectures at the College de France. What we know less well, I contend, is how to critique them – discipline and sécurité, that is – the way that Foucault critiqued the terms folie, délinquance, or sexualité.

In this essay, I push further my meditations on punishment and subject discipline and sécurité to the same brutal method that Foucault used in his writings on folie, délinquance, and sexualité. I begin by …

The American Law Institute Goes Global: The Restatement Of International Commercial Arbitration, George A. Bermann

Faculty Scholarship

The American Law Institute's new Restatement of the U.S. Law of International Commercial Arbitration is only barely underway, and the reporters began with a chapter, namely the recognition and enforcement of awards, that should represent for them a comfort zone of sorts within the overall project. Yet, already a number of difficult, and to some extent unexpectedly difficult, questions have arisen. Some of the difficulties stem from the very nature of an ALI Restatement project. Others stem from the nature of arbitration itself and, more particularly, from the inherent tension between arbitral and judicial functions in the arbitration arena. Still …

The Effect Of Court-Ordered Hiring Quotas On The Composition And Quality Of Police, Justin Mccrary

Faculty Scholarship

Arguably the most aggressive affirmative action program ever implemented in the United States was a series of court-ordered racial hiring quotas imposed on municipal police departments. My best estimate of the effect of court-ordered affirmative action on work-force composition is a 14-percentage-point gain in the fraction African American among newly hired officers. Evidence on police performance is mixed. Despite substantial black-white test score differences on police department entrance examinations, city crime rates appear unaffected by litigation. However, litigation lowers slightly both arrests per crime and the fraction black among serious arrestees.

Some Reflections About Three Decades Of Working With Incarcerated Mothers, Philip Genty

Faculty Scholarship

Almost thirty years ago I was a second-year student in a law school clinic. I was making my first legal visit to a prison. My client, whom I will call "Dina," was meeting me to talk about some visitation issues with her young son. When she came into the visiting room she was poised and professional in demeanor. She began to explain that her son was being cared for by his paternal grandmother. The grandmother was unwilling to bring him to the prison to see her. As a result Dina had not seen her son for several months. Suddenly, and …

Institutional Coordination And Sentencing Reform, Daniel C. Richman

Faculty Scholarship

Deciding how much time a person should spend in prison for a serious crime is an inherently moral and political act. And it is certainly coldhearted and philosophically problematic to view sentencing as just an agency problem with criminal defendants as objects of a system in which prison terms are simply outputs. So I will not even try to justify resorting to a narrow institutional perspective as a normative matter. But, for better or worse, those political actors with the greatest influence on sentencing regimes have to think in aggregate terms. While there is considerable normative appeal to the idea …

Death And Deterrence Redux: Science, Law And Causal Reasoning On Capital Punishment, Jeffrey Fagan

Faculty Scholarship

The essay shows that the new deterrence studies are fraught with numerous technical and conceptual errors: inappropriate methods of statistical analysis, failures to consider several relevant factors that drive murder rates such as drug epidemics, missing data on key variables in key states, the tyranny of a few outlier states and years, weak to non-existent tests of concurrent effects of incarceration, statistical confounding of murder rates with death sentences, failure to consider the general performance of the criminal justice system, artifactual results from truncated time frames, and the absence of any direct test of the components of contemporary theoretical constructions …

Embracing Chance: Post-Modern Meditations On Punishment, Bernard E. Harcourt

Faculty Scholarship

Since the modern era, the discourse of punishment has cycled through three sets of questions. The first, born of the Enlightenment itself, asked: On what ground does the sovereign have the right to punish? Nietzsche most forcefully, but others as well, argued that the question itself begged its own answer. The right to punish, they suggested, is what defines sovereignty, and as such, can never serve to limit sovereign power. With the birth of the social sciences, this skepticism gave rise to a second set of questions: What then is the true function of punishment? What is it that we …

Crime And Punishment In Taxation: Deceit, Deterrence, And The Self-Adjusting Penalty, Alex Raskolnikov

Faculty Scholarship

Avoidance and evasion continue to frustrate the government's efforts to collect much-needed tax revenues. This Article articulates one of the reasons for this lack of success and proposes a new type of penalty that would strengthen tax enforcement while improving efficiency. Economic analysis of deterrence suggests that rational taxpayers choose avoidance and evasion strategies based on expected rather than nominal sanctions. I argue that many taxpayers do just that. Because the probability of detection varies dramatically among different items on a tax return while nominal penalties do not take the likelihood of detection into account, expected penalties for inconspicuous noncompliance …

From The Asylum To The Prison: Rethinking The Incarceration Revolution, Bernard Harcourt

Faculty Scholarship

The incarceration revolution of the late twentieth century fueled ongoing research on the relationship between rates of incarceration and crime, unemployment, education, and other social indicators. In this research, the variable intended to capture the level of confinement in society was conceptualized and measured as the rate of incarceration in state and federal prisons and county jails. This, however, fails to take account of other equally important forms of confinement, especially commitment to mental hospitals and asylums.

When the data on mental hospitalization rates are combined with the data on imprisonment rates for the period 1928 through 2000, the incarceration …

The Past, Present, And Future Of Violent Crime Federalism, Daniel C. Richman

Faculty Scholarship

The history of the federal involvement in violent crime frequently is told as one of entrepreneurial or opportunistic action by presidential administrations and Congress. The problem with this story, however, is that it treats state and local governments as objects of federal initiatives, not as independent agents. Appreciating that state and local governments courted and benefited from the federal interest is important for understanding the past two decades, but also for understanding the institutional strains created by the absolute priority the feds have given to counterterrorism since September 11, 2001. Intergovernmental relations are at a crossroads. For two decades, the …

Attention Felons: Evaluating Project Safe Neighborhoods In Chicago, Andrew V. Papachristos, Tracey L. Meares, Jeffrey Fagan

Faculty Scholarship

This research uses a quasi-experimental design to evaluate the impact of Project Safe Neighborhood (PSN) initiatives on neighborhood level crime rates in Chicago. Four interventions are analyzed: (1) increased federal prosecutions for convicted felons carrying or using guns, (2) the length of sentences associated with federal prosecutions, (3) supply-side firearm policing activities, and (4) social marketing of deterrence and social norms messages through justice-style offender notification meetings. Using an individual growth curve models and propensity scores to adjust for non-random group assignment, our findings suggest that several PSN interventions are associated with greater declines of homicide in the treatment neighborhoods …