- The Washington Times - Tuesday, August 7, 2001

A modest book with much to be modest about. That characterizes author Bernard E. Harcourt's robust attack on a contemporary criminal justice axiom: namely, that broken windows and sister earmarks of antisocial behavior herald crime and urban decay; and, that aggressive policing of such disorderly conduct will depress crime rates and restore civility. New York, under Mayor Rudolph Giuliani, during which "quality of life" misdemeanor offenses (e.g., panhandling, prostitution, public urination or inebriation) have leapfrogged in the police enforcement hierarchy with a corresponding tumbling of crime, is routinely proffered as proof.

Mr. Harcourt ostensibly demolishes the outstanding empirical support for the theory in an early and benumbing chapter of "Illusioin of Order: The False Promise of Broken Windows Policing," but not the theory itself. His statistical critique, featuring coefficients, standard errors, P-values and confidence intervals will spin non-mathematical minds. The wise book reviewer, like the wise man, knows what he doesn't know.

Less narcotic than statistics is Mr. Harcourt's theoretical jousting with the broken windows gospel. He cogently argues that the legal demarcation line between the orderly and disorderly is artificial. The opposing categories do not shine with neon signs, but are constructs of a civilized society that hopes to achieve the greatest good for the greatest number. Right and wrong (i.e., order and disorder) are not brooding omnipresences in the sky, but reflect moral judgments tempered by prudence and made by community consensus. For instance, if prostitution is legalized in Las Vegas, then prostitutes there are no longer "disorderly" in the eyes of the law.

Broken window proponents defend the prevailing war against "quality of life" disorder offenses by advancing a domino-like theory of crime. Nuisance crimes escalate into urban colonies of felonious desolation by creating an aura of government impotence or indifference that emboldens the predatory and frightens away the law-abiding. Criminologist Dan Kahan amplifies: "Disorder is … pregnant with meaning: Public drunkenness, prostitution, aggressive panhandling and similar behavior signal not only that members of the community are inclined to engage in disorderly conduct, but also that the community is unable or unwilling to enforce basic norms… . In this environment, individuals who are otherwise inclined to engage in crime are much more likely to do so.

"The meaning of disorder can also influence the behavior of committed law-abiders in a way that is likely to increase crime. If they can, law-abiding citizens are likely to leave a neighborhood that is pervaded by disorder. Their departure increases the concentration of law-breakers, thereby multiplying their interactions with each other and accentuating their mutually reinforcing propensities to engage in crime. Law-abiders who stick it out, moreover, are more likely to avoid the streets, where their simple presence would otherwise be a deterrent to crime… . The law-abiders' fear of crime thus facilitates even more crime."

Mr. Harcourt questions that causal explanation, but does not insist on its falsity in the spirit of a man untroubled by doubt. The causal links Mr. Kahan elaborates stand on nonmathematical concepts of human nature gleaned more from Fyodor Dostoyevsky and William Shakespeare than from Euclid or Archimedes. Moreover, Mr. Harcourt asserts, "quality of life" policing is a cure that is arguably worse than the disease. Police may brandish their sweeping stop-and-frisk-and-arrest discretion to harass minorities and the underclass. Harassment leads to bitterness, which leads to more crime.

But Mr. Harcourt is mute as to how net social welfare and happiness fall when social ostracism of the disorderly climbs and finds expression in policing tactics and punishment. He quibbles: "The term 'disorder' is the locus of the problem … We have come to identify certain things (graffiti, litter, panhandling, turnstile jumping, public urination) and not others (paying workers under the table, minor tax evasion, fraud, and police brutality) as 'disorderly' and somehow connected to crime, in large part because of the social practices that surround us … Urinating in the street signals that rules have broken down only if the meaning of public urination is associated with rule breaking."

Simply because the meaning of disorder is not fixed like the North star and evolves with cultural mores, however, does not morally or otherwise discredit its contemporary meaning in the United States. Indeed, all law is the moral deposit of the times, including misdemeanor "quality of life" offenses. In any event, Mr. Harcourt neglects serious inquiry into whether minor tax evasion or the like are as threatening to community tranquility and the rule of law as are the prevailing crimes of disorder. He, nevertheless, deserves commendation for asking tough questions about broken windows policing that are too often ignored. Truth is fathered by persistent intellectual assaults.

Bruce Fein is a lawyer and freelance writer specializing in legal issues.

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