A man was arrested for entering a New York subway station through an emergency gate without paying the fare. When police patted him down, they found he was illegally carrying a loaded gun. When another man was arrested for fare evasion at a different stop, police found he was carrying 38 decks of heroin and a loaded gun that had been reported as stolen. Yet another was arrested for not paying the subway fare in another part of the city, and it turned out he was carrying a gun, ammunition, and crack cocaine. New York police argue that enforcing a seemingly minor offense (fare evasion) helps them catch people like these who are up to no good—perhaps preventing violent crime. And yet, how to handle such offenses has been hotly debated for decades. Some worry that allowing arrests will result in violent confrontations or jail time for people already struggling to make ends meet. For what, a 690 million to fare evasion the previous year. Turnstile hoppers were apparently undeterred by tickets written by the police hovering nearby, and seeing some people ride without paying made others feel like suckers for buying a ticket. A year later, Ley followed up with an equally dire statistic: 48 percent of bus riders in the city did not pay the required fare. (The number for subway riders was 14 percent.) “If the transit system does not work and nobody plays by the rules, it feels lawless. It is lawless,” said Janno Lieber, chief executive of the MTA. “This is really tearing at the social compact of New York.” Current debates about how to handle low-level nonviolent crimes are reminiscent of those from thirty years ago. In 1993, Rudy Giuliani was elected mayor of New York City. He came to office promising to make the city safer, and quickly adopted a strategy that had previously been discussed only in academic circles: “broken windows” policing. The idea underlying this approach was that disorder begets disorder. By addressing low-level offending—trespassing, vandalism, prostitution, urinating in public—police could deter more serious offenses. People would know that police were paying attention and that the community was well cared for, and so they would behave better. Fix the broken windows, and arrest the guy who broke them, and you’ll prevent violent crime as well. Crime fell dramatically in New York City during the 1990s, and Giuliani claimed victory. In his farewell address in 2001, he credited this strategy—cracking down on low-level offenders as a way to prevent crime from escalating—as the key to his success. “The broken windows theory replaced the idea that we were too busy to pay attention to street-level prostitution, too busy to pay attention to panhandling, too busy to pay attention to graffiti. Well, you can’t be too busy to pay attention to those things, because those are the things that underlie the problems of crime that you have in your society.” Since then, it’s become less clear how helpful that strategy really was. Crime fell dramatically throughout the US in the 1990s and early 2000s, not just in New York City. And yet this theory is still appealing to voters, and still motivates the policies of many police departments and prosecutors’ offices. Fast-forward to the present, when many cities are struggling with persistent and increasingly brazen public drug use, homeless encampments, vandalism, petty theft, and, yes, turnstile hopping. More serious crime, including organized retail theft rings, carjackings, and even homicide, also became serious problems in many cities—a shock after decades of declining crime rates. In 2022, the San Francisco resident and political commentator Richie Greenberg described what he saw as a turn toward lawlessness, to The Atlantic ’s Annie Lowery. “People are sick and tired of the whole atmosphere of the city. It’s not fun to live here anymore,” he lamented. The past several years have prompted calls to return to a Giuliani-style zero-tolerance approach to disorder, with stiff penalties for even the most minor offenses. Today, when I speak with policy stakeholders across the United States, I’m frequently asked if a broken windows approach could be the solution to their problems. Could a tougher approach to minor offenses be the key to reducing more serious crime? Many voters have decided it’s at least worth trying—again—and not just in the subway. In 2023, police in San Francisco began cracking down on public drug use, arresting more than seventeen hundred people between May and December. “You’ll never hear me say that arresting folks will solve addiction, but these are still crimes,” Police Chief Bill Scott told The San Francisco Standard . San Francisco sheriff Paul Miyamoto saw punishment as a compassionate incentive for people to get the help they need: “Justice-involved persons with substance use disorder sometimes need the threat of jail time to compel them to remain in programs that successfully address the root causes of addiction,” he said, explaining the city’s efforts to dismantle open-air drug markets. In Philadelphia’s Kensington neighborhood, police crackdowns targeted public drug use as well as other minor offenses and quality-of-life issues—they shooed away people who were loitering, towed unregistered cars, and cleaned vacant lots. “The neighbors really didn’t complain,” Deputy Commissioner Pedro Rosario responded when asked about community pushback. “They were happy. They were thumbs-upping me a lot.” There is at least a kernel of wisdom in this approach. We know that people respond to incentives, and swift and certain punishment for bad behavior deters future offending. That is important, and to the extent that broken windows means making consequences more likely, it could indeed reduce crime and put people on a better path. But increasing the probability of punishment is different from making the punishment harsher. Many proponents of the broken windows approach don’t simply want to arrest people for their bad behavior, they want to throw the book at them. (Because of this, broken windows, as a philosophy, extends beyond what police do and into the courtroom, where prosecutors and judges decide the consequence for an offense.) It’s not clear that harsher punishment would be productive. On top of that, it’s possible that prosecuting and punishing low-level offenders has other, detrimental effects that cancel out any benefits we get from deterrence—especially if it’s someone’s first brush with the law. For instance, a criminal record makes it more difficult to find a job, and it means you might lose the job you had before your conviction. This creates economic hardship that can make criminal behavior more likely, as a way to make ends meet. A criminal record also makes it more difficult to find housing, as most landlords run background checks just like employers do. Without a safe place to live, you might find yourself in more dangerous situations, with less to lose, and more vulnerable to future charges for offenses such as trespassing when you have nowhere else to go. To the extent that your previous offenses were the result of untreated mental illness or substance use, the stress of criminal charges and any punishment could make those problems worse. How much do all these factors matter in practice? Would reducing the consequences for low-level offenses be helpful? Those who say no—like proponents of broken windows policing—think the threat of harsh punishment has a big deterrent effect. But others say yes. Reform-minded prosecutors, elected in many cities over the past decade, have promised to go easier on minor offenses so that they can focus more attention on violent crimes. In 2019, Wesley Bell, the prosecuting attorney in St. Louis County, Missouri, told NBC News that diverting nonviolent offenders from jail to rehabilitative programming “not only brings our crime rates down, but most importantly, it helps people and families.” Still others believe that the challenges faced by those who commit low-level crimes—poverty, limited education, untreated mental illness—are so large that only a massive reform of our social safety net will keep people from cycling back through the criminal justice system. Who’s right? * * * Prosecution in Suffolk County With such diverging opinions on what to do with people arrested for low-level offenses, figuring out the best path forward requires turning to data. I teamed up with the economist Amanda Agan, now at Cornell University, and political scientist Anna Harvey, from New York University, to study this issue. We wanted to know what effect the decision to prosecute someone for a nonviolent misdemeanor—minor offenses like trespassing, shoplifting, and minor drug possession—would have on a defendant’s future criminal justice involvement. Would cracking down on that low-level offense reduce their likelihood of reoffending (as broken windows proponents expect) or increase it (as reform prosecutors argue)? We managed to get data from the District Attorney’s Office in Suffolk County, Massachusetts, where Boston is located. The DA there at the time, Rachael Rollins, also wanted to know the answer to this question, and so enthusiastically handed over her office’s data, no strings attached. This is a researcher’s dream. Many policymakers are hesitant to share data when they can’t control the results of the study, and can’t block unfavorable results from being published. But such restrictions are a nonstarter for researchers like us. Luckily, then-DA Rollins was on board with our scientific approach and wanted to follow the evidence. She understood that this was the best way to figure out how to improve public safety—and perhaps end this long-standing debate. In Suffolk County, once police make an arrest or issue a summons, and then determine that probable cause exists for the charge, the case goes to an arraignment hearing. In that hearing, an assistant district attorney (ADA) representing the government decides whether to pursue the charges or dismiss the case. They are essentially deciding whether they think the case is a good use of prosecutors’ time. This is the decision we were interested in. What if more cases were dismissed up front? Would that lead to more recidivism, or less? What if more cases were dismissed up front? Would that lead to more recidivism, or less? Simply comparing people who were prosecuted with those who were not wouldn’t answer this question, because prosecutors intentionally choose whom to prosecute. If we found that those who were prosecuted were more likely to reoffend in the future, we wouldn’t know if this was the effect of the prosecution decision, or because prosecutors only move forward with cases against higher-risk defendants. Prosecution might be correlated with recidivism, but that doesn’t necessarily mean prosecution causes recidivism. So once we had the data, it was time to hunt for natural experiments that would allow us to distinguish correlation from causation. The ideal experiment in this context would randomly assign some defendants to be prosecuted and others not. We could then attribute any differences in future behavior across these two groups to the effect of being prosecuted, without worrying there are other underlying differences between them that explain their differences in behavior. Of course, no one would agree to prosecute cases at random (nor should they). But it turns out that the way nonviolent misdemeanor cases are assigned to ADAs mimics this ideal experiment. What determines which ADA handles each case? Handling arraignments is the “grunt work” of the prosecutors’ office. (The more interesting work comes later in the case proceedings.) So everyone takes a turn, especially junior ADAs who haven’t specialized yet. ADAs are assigned to the arraignment courtroom in an ad hoc way that changes week to week, depending on their other meetings and case schedules. This Monday, Tom might be assigned to handle arraignments, but next Monday, Anne might be assigned to that task. This assignment schedule is unrelated to the types of cases expected on that day—this is the key. Because of this, we don’t need to worry that ADAs are selected to handle particular cases on account of their expertise or preferences—at least for the nonviolent misdemeanor cases we are interested in. (They might pull someone with more expertise in for more serious offenses.) It’s important to understand the huge volume of these cases that go through the courts in any given week—misdemeanors make up 70 to 80 percent of all cases. For these very minor offenses, ADAs have just a few moments to decide whether to proceed with a case or drop it. The goal is to keep the cases moving; this is the only way the courts don’t become completely overwhelmed by minor charges and grind to a halt. Because everything moves so quickly, and because ADAs’ schedules are so unpredictable, it is not possible for defendants to game the system to get a particular ADA. When their case is at the top of the pile on the ADA’s desk, it’s their turn. They get what they get. This all means that which ADA handles a particular case is effectively random—there is no correlation between case characteristics and the characteristics or relative harshness of the ADA. Human discretion as a natural experiment So we have randomization of ADAs, but this doesn’t help if all ADAs behave the same way. What we also need from this natural experiment is randomness in the decision to prosecute. This is where we could rely on human nature, and a fact that we see in every domain where humans make decisions: People have different preferences, and so they will use any discretion they have in different ways. And prosecutors have a lot of discretion. In this context, this means that two different prosecutors considering identical cases might make completely different decisions. One might drop the case immediately, while the other might choose to move the case forward with the goal of conviction and punishment. This probably sounds extremely unfair. Shouldn’t identical cases get the same outcome regardless of who the prosecutor is? That is certainly the ideal, but in contexts like this, there is no right answer about what should happen in a case. We count on human decision-makers to use their best judgment. This leads to differences in outcomes that we’d rather not have. In the U.S., we tend to swing back and forth between limiting the discretion of criminal justice actors like prosecutors and judges and giving them more discretion. We hear about big differences in outcomes across similar cases—for instance, Black defendants receiving harsher sentences than similar white defendants—and we demand restrictions on discretion. This is part of the reason for policies like sentencing guidelines and mandatory minimum sentences. These tie the hands of prosecutors and judges, at least on some dimensions. Having your case dismissed rather than pursuing prosecution—reduced the likelihood of showing up in court again with new charges by 53 percent, and it reduced the number of future charges by 60 percent. But then we hear about a case that, based on these standardized rules, resulted in an outcome that seems totally unfair given some extenuating circumstances, and we demand that decision-makers have more discretion to deviate from those rules when it is warranted. We want them to use their judgment to provide the best outcome. And then when they do, we wind up with different outcomes across similar cases, and we swing back toward wanting less discretion. What we want is for prosecutors and judges to use their discretion only for good—to reach the decision we think is most appropriate. But the problem is that different people disagree about what is appropriate. Allowing people to use their best judgment has trade-offs, and we have to take the bad with the good. One silver lining to this complicated dilemma is that human discretion creates great settings for research. In Suffolk County, random assignment of cases across ADAs meant that we effectively had random assignment of cases to different treatments—the ideal experiment we’d hoped for. Some defendants get lucky and their case is handled by a lenient ADA; because of this, they are more likely to have their case dismissed outright. Other defendants are unlucky and their case is handled by a harsh ADA; their case is more likely to move forward to the next stage. Through the luck of the draw—which ADA happened to be in that courtroom that day—we have identical cases that are treated in different ways. What happened to those lucky defendants whose cases were dropped because they happened to be in the right courtroom at the right time with a lenient ADA? Proponents of broken-windows-style punishment as a deterrent would predict that those defendants would be emboldened. Facing little consequence for their actions the first time, they’d realize the costs of bad behavior were low and commit even more crime in the future. But that’s not what the data showed. It turns out that leniency at this early stage—having your case dismissed rather than pursuing prosecution—reduced the likelihood of showing up in court again with new charges by 53 percent, and it reduced the number of future charges by 60 percent. The effects were larger for first-time defendants—those with no prior arrest or conviction on their record. * * * The power of leniency David Eil is an assistant public defender in Mecklenburg County, North Carolina, where Charlotte is located. He has seen firsthand the damage that a first conviction can do. And—unlike most lawyers—he used to be an economist. So he has a keen eye for natural experiments. This makes him a great person to compare notes with about how the criminal justice system works in practice. “I had two misdemeanor clients who were similarly situated,” he told me recently. “Both were facing the same charge, but their cases had different outcomes due to random chance.” Both clients were charged with misdemeanor assault on a government official—a charge that sounds really bad, but David assured me that such a charge at the misdemeanor, rather than felony, level is almost always pretty minor. (“I literally had a client get charged with as
What Becomes of Second Chances?
Jennifer Doleac