Thursday, April 09, 2020

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Abstract

Excerpted From: Mike Rowan, The Illusion of Broken Windows Theory: an Ethnographic Engagement with the Theory That Was Not There, 9 William & Mary Policy Review 1 (2017) (180 Footnotes) (Full Document)

 

MikeRowan02This article critically engages with the debate over Broken Windows Theory by drawing on three years of findings from an ethnographic case study of an urban space in Jersey City, New Jersey, in which rates of serious crime were relatively low, yet levels of "disorder," as typically conceived by advocates of Broken Windows Theory, were relatively high. At the very least, these findings demonstrate that there is no necessary connection between "disorder" and crime.

Such findings do not, however, serve to refute Broken Windows Theory even though it is commonly translated into the simple proposition "disorder causes crime" or into the much more ambitious notion that "crime is the inevitable result of disorder." It is not clear that the findings even so much as count as evidence against the theory. Rather, as my efforts to engage with the theory revealed, it became increasingly unclear what evidence, if any, could ever count against it, much less disprove it.

Contrary to how some very prominent commentators have interpreted it, Broken Windows Theory does not claim that disorder inevitably leads to crime. Nor does it posit a direct causal connection between disorder and crime. The theory, rather, not only stops short of making deterministic claims about disorder and crime; it is not even "a strong causal theory" as some commentators have interpreted it to be.

Beginning with the essay in which James Q. Wilson and George Kelling first introduced the world to Broken Windows Theory, its most authoritative expositors have never been so bold as to claim that disorder will lead to crime, but merely that it may indirectly cause crime through a "developmental sequence" in which fear, social withdrawal, and a diminution in informal social controls renders a space "more vulnerable to criminal invasion." The theory does not, however, claim that any of these variables will necessarily lead to another. Rather, it posits only that: disorder may lead to fear, which may lead to withdrawal, which may lead to a deterioration of informal social controls, and even if all these events come to pass, the result is not necessarily increased crime, but merely increased vulnerability to crime. As such, though Broken Windows Theory amounts to a much more sophisticated and plausible account than it is frequently interpreted to be, its specification of intermediate variables does not render it any more susceptible to disconfirmation than if it merely claimed nothing more than 'disorder may cause crime.'

Thus, when leading critics of the account insist that the theory has been shown to be wholly "without empirical foundation" or, more resolutely, when they declare it has been "scientifically discredited" or altogether "debunked," they are missing the point. The problem with the theory, empirically-speaking, is not that it has been debunked but, instead, that its logic is un-debunkable.

No theory should be invulnerable to refutation. To be fair, however, social-scientific theories are rarely, if ever, constructed to allow for their refutation. Rather, unlike many (though not all) theories in the natural sciences, social-scientific accounts tend to be constructed in probabilistic, rather than deterministic, terms. Yet, while the validity of probabilistic theories is typically assessed through large-N statistical analysis, Broken Windows Theory, as we will see, is not the type of account that can be meaningfully evaluated through such an analysis.

To make matters even more complicated, Broken Windows Theory ultimately does not rest upon an empirical claim. Rather, it amounts to a normative argument for deploying the police, at least in certain places, to proactively, if not aggressively, work to restore or maintain "public order," if need is perceived to be (e.g., if informal methods of control fail). According to the theory, police may accomplish this end by issuing summonses to "disorderly" (but "not violent") persons engaging in "disorderly" acts; arresting them; and potentially incarcerating them. To this point, George Kelling and Katherine Coles concluded in Fixing Broken Windows, the crux of the theory is that: "Restoring order is key to revitalizing our cities ... regardless of whether a reduction in crime results."

All of this raises a very basic question that has not received the attention it so desperately deserves: how should Broken Windows Theory be evaluated? This is the question with which this article is ultimately concerned.

The first part of this article discusses the ethnographic case study that inspired and informed the analysis that follows.

The second part discusses how, even though such a study is, in crucial respects, ideally suited as a method for testing Broken Windows Theory, its empirical claims are much too vague and uncertain to allow for definitive, or even meaningful, tests of the sort that both proponents and critics of the account have claimed to have conducted. Rather, as the article goes on to discuss, Broken Windows Theory is not so much a theory in the sense of an account that is logically amenable to definitive testing, but is, rather, as an empirical matter, much more in the nature of a "supposition" or conjecture.

Until recently, this was essentially how the progenitors of the theory viewed it; both Wilson and Kelling repeatedly referred to their theory as a "speculation." Yet, in defending his theory in the wake of Eric Garner's death-by-chokehold at the hands of an NYPD officer near Staten Island's Tompkinsville Park (a space not unlike Journal Square), Kelling boldly declared, with very little basis, that there is now "science" to Broken Windows Theory and that that "the burden's on the other side" to demonstrate that there is "no link between disorder and crime." This article finds Kelling's invocation of science wanting and argues that Broken Windows Theory is still, after all these years, a speculation.

It is, though, a plausible enough speculation, and as Bernard Harcourt conceded in his book Illusion of Order: The False Promise of Broken Windows Theory "many theoretical accounts in politics, criminal justice, and public policy are not validated but that usually does not stop us from implementing those policies." Accordingly, Harcourt, who is widely deemed to be the foremost critic of Broken Windows, prefaced his critique in Illusion of Order by noting that he did "not intend to hold the ... theory to an unrealistically high empirical standard."

And yet, this article argues, that is precisely what Harcourt and other leading critics of Broken Windows Theory have done. In the process, moreover, as the third part of the article discusses, they have served to distract from fundamental questions about the justice of the approach to policing that the theory urges and has long served to legitimize.

No one has ever succeeded in demonstrating that Broken Windows Theory is less than plausible and one of its ardent critics has even described it as "eminently plausible." Yet, while plausibility, or some kind of "rational basis," may be a sufficient threshold for most of the ideas upon which our laws and policies are premised, Broken Windows Theory is not just any kind of idea. Nor is the approach to maintaining order that it counsels just any kind of policy. Rather, the theory and practice of Broken Windows raises fundamental questions about the proper limits of state power and about the justice of abrogating rights no less fundamental than freedom from bodily constraint and other forms of violence. While this much is true of criminal laws and their enforcement more generally, what sets Broken Windows apart from other methods of defining and controlling crime is that it calls for, and has long served to legitimize, the criminalization of behaviors and the targeting of persons who are merely "disorderly," not violent. As such, as even Wilson and Kelling acknowledged from the start, the Broken Windows approach is, on its face, suspect as a matter of justice; as they conceded (though stopped short of explaining): "Arresting a drunk or a single vagrant who has harmed no identifiable person seems unjust, and in a sense, it is."

The Broken Windows approach essentially entails subjecting individuals to state violence and curtailing their most basic liberties in response to non-violent conduct, and, consequently, does not even pass tests of proportionality and desert widely deemed to be draconian, including the Old Testament standard of lex talionis. The case for deploying armed agents of the state to use violence, or at least leverage the threat of it, would be suspect even if the evidence was clear that, in a given scenario, disorder was indirectly leading to serious crime.

As the fourth part of this article discusses, the case for Broken Windows ultimately rests on normative grounds. Empirical critiques of the theory of the sort that have been conducted to this point, therefore, are problematic, not only because they cannot hope to debunk the un-debunkable, but also because they distract from the fact that the theory is fundamentally a normative argument.

This article concludes by arguing for the use of normatively-oriented ethnographic research on a case-by-case basis to assess the need for order-maintenance policing. As my own research illustrates and as proponents of Broken Windows Theory have repeatedly acknowledged, disorder (as conceived by the theory) does not lead ineluctably to serious crime. We also know that disorder (again, as conceived by the theory) does not necessarily lead to other similarly catastrophic consequences. It is not clear, then, why we should presume, in advance of investigation, the necessity or desirability of an approach that is predicated upon the use of state violence, and that threatens liberty and potentially life itself, in response to behaviors that do not directly or necessarily jeopardize either.

This article argues instead for a framework for assessing the necessity of order-maintenance policing prior to its implementation. Under this framework, if close, careful, and reasonably objective research determines in a given case that disorder is, in fact, leading to serious crime or other similarly grave consequences and, additionally, that there are no "less restrictive means" available for redressing it, then, much as some fundamental rights can only be burdened under American constitutional law upon a showing of a compelling need to do so, order-maintenance policing could be implemented as an emergency measure, but only for as long as ongoing research deems it necessary. In the absence of such a showing, this article submits that a free and just society ought to err on the side of restraint and, inasmuch as possible, work to resolve social problems in ways that do not rely upon exercises of state violence that are patently disproportionate to the behaviors the Broken Windows approach is designed to repress.

[. . .]

This is but a very brief, but hopefully sufficiently suggestive, snapshot of the sorts of findings and insights ethnographic case studies can supply if undertaken with the aim of bringing "grand ideals" and the facts on the ground into conversation in a way that is all too rare in either the social sciences or philosophy. Such is the brilliance of Thacher's normative case-study approach. Indeed, it is an approach that is perhaps, as Thacher suggests, so very vital to avoiding the dangers of abstraction on the one hand, and particularism on the other, that it ought to be undertaken prior to endorsing efforts to maintain order through potentially unnecessary, or even counterproductive, measures which implicate nothing less than liberty, justice, and possibly, as the killing of Eric Garner tragically illustrated, even life itself.

Much has been canvassed in this article that is undoubtedly in need of more critical attention, contemplation, and debate. In the short run, the hope is that, like Thacher's efforts, as well as recent ethnographic research on policing that has yielded the very kind of "thick description" that Thacher calls for, the analysis in this article will at least help to set right what has been proved thus far to be one very disorderly debate. Particularly when one considers the enormity of its stakes, whether order is ultimately brought to the debate--and, if so, the precise shape it comes to take--may say as much, or more, about the social order in which we presently find ourselves.


Assistant Professor, John Jay College of Criminal Justice, City University of New York.


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Vernellia R. Randall
Founder and Editor
Professor Emerita of Law
The University of Dayton School of Law

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