A leading scholar rethinks her relationship to broken windows.
“Broken windows” comes from the title of an article that George Kelling and James Q. Wilson wrote for the Atlantic Monthly in 1982, 40 years ago. A piece of their theory was an experiment by psychologist Philip Zimbardo. Zimbardo arranged to have a car parked without license plates with its hood up on streets in the Bronx and in Palo Alto. Within 10 minutes in the Bronx, a family came by and removed the battery and radiator. Within 24 hours, almost everything of value had been removed from the car. After that, random destruction occurred to the car. The car in Palo Alto remained untouched until Zimbardo smashed part of it with a sledgehammer before a group of onlookers. Others joined in. Zimbardo described those who vandalized the cars in both cities as “respectable well-dressed whites.” Wilson and Kelling wrote that we could learn from Zimbardo’s experiment. Their conclusion? If police took care to make sure disorder was cleaned up, then it stood to reason that their efforts would prevent crime.
In 1990, there were more than 2,200 homicides in New York City. When I became a fledgling law professor in 1994, the count fell below 1,600 — an astonishing drop, but still orders of magnitude higher than the 488 posted in 2021. How to deal with violence — shootings, homicides, robberies and the like — was a serious policy problem of the day. Few law professors were working on this problem as I began my career, but it was a problem I started to think about in earnest with the encouragement of social scientists mentoring me at the time — William Julius Wilson in particular, whose work centered the neighborhood in thinking about policies to address what Joe Soss and Vesla Weaver call “race-class subjugated communities.”
The prevailing conceptual framework for law professors thinking about how to address criminal behavior, in contrast, centered a “law and economics” paradigm that focused primarily on the incentives that individual law-breakers faced, to the exclusion of other macro-level dynamics. The law-and-economics approach asserted that to persuade Homo economicus to engage in less robbery, say, a policy-maker should increase the severity of the penalty a potential offender faced, increase the likelihood that the offender would ultimately be caught or both. Attendant policies supported a “tough on crime” narrative that was consistent with more imprisonment.
I wanted to think about approaches that addressed violence without leading inexorably to long prison sentences, so my co-author Dan Kahan and I argued that broken-windows policing might be a prime example of the way in which legal policy could usefully harness social norms for the purpose of enhancing law-abidingness. We maintained that, while social scientists had long pointed to social norms as an important regulator of daily life, what many law enforcers had missed was the potential for law and norms to interact in ways that might affect illegal conduct. This brand of legal scholarship was called the “New Chicago School” to mark it as distinct from the old law-and-economics approach. We even (to my chagrin today) had a New Yorker article written about us!
Those of us in the norms-focused Chicago School were interested in exploring multidisciplinary approaches to human interaction and informal (read, nonstatist) methods of achieving compliance as opposed to formal sanctions. We found “broken windows” fascinating because, while a statist approach, nothing in the standard law-and-economics approach to developing criminal law policy suggested that attacking visible signs of disorder in the form of relatively trivial types of misconduct — such as panhandling, graffiti, prostitution or public drunkenness — would impact more serious crime. We also appreciated that, if effective, the approach was seemingly less costly than the stiff formal penalties advocated by the standard law-and-economics school. Moreover, we thought the new approach more immediately feasible to implement than waiting to correct long-standing social inequities often asserted to be the root causes of crime.
How people perceive disorder is intertwined with how they perceive race and class.
Our argument was normative as well as empirical. It was important to us that there was mounting evidence that those residing in neighborhoods where violence was a too regular occurrence seemingly supported a suite of law enforcement strategies that appeared to offer residents the opportunity to shape their own norms. We were not sanguine about the fact that there potentially was disagreement in the relevant communities about the best approach to crime reduction. We maintained, however, that community deliberation about the best approach to address crime was an important exercise in community self-determination. We believed the very process could lead to an improvement in collective efficacy, which other scholars, such as Robert Sampson, had demonstrated to be a precursor to crime reduction. In short, we thought broken-windows policing potentially was about the promotion of democracy at the neighborhood level.
Naturally, there were those who disagreed with us. Indeed, I now disagree in many ways with myself, and I have explained why in print. Here is a summary of why: first, there is now an extensive body of research questioning the very mechanics of the theory of broken windows. For example, Rob Sampson and Steve Raudenbush wrote a game-changing piece on systematic social observation, which called into question the basic precepts of broken-windows theory. Newer work has evaluated the impact of so-called broken-windows policing on crime itself.
Historically, the groups that bear the brunt of violence also are the groups who must bear the costs of whatever statist strategy designed to address this problem.
Second, researchers have begun to focus in very targeted ways on the psychology of the perception of disorder. Importantly, the broken-windows thesis is about how people translate their perceptions of physical disorder into information about their social world. Social cues matter to people interpreting disorder as well as physical cues. Sampson and Raudenbush demonstrate that how people perceive disorder is intertwined with how they perceive race and class. Black people perceive less physical disorder than white people living in the same neighborhood. All respondents’ perceptions of physical disorder increased, no matter their identified race, as their perception of the percentage of Black people living in the neighborhood increased. Importantly, there is no reason to think that police carrying out law enforcement tasks would respond any differently from Sampson and Raudenbush’s respondents.
When people are treated by the legal authorities in ways they perceive to be legitimate, they are more likely to voluntarily comply with the law.
The question to answer is whether and how a local government entity might carry out tasks critical to well-functioning and self-governing communities that promote the goal of safety. Addressing violence in communities is critical, and so is the fact that historically the groups that bear the brunt of violence also are the groups who must bear the costs of whatever statist strategy is designed to address this problem. These groups have too often been shut out of the political process, and they deserve a local government apparatus that is responsive and attentive to their particular needs, treats them with dignity and respect, listens to their concerns and engenders an expectation among them of benevolent treatment by legal authorities. Much scholarship supports the conclusion that when people are treated by the legal authorities in ways they perceive to be legitimate, they are more likely to voluntarily comply with the law and cooperate and engage with these authorities to address problems. The problem is that broken-windows policing, as carried out in many cities, is fundamentally inconsistent with legitimacy. The question is: What exactly might the state do for its citizens to achieve the critical goal of helping citizens help themselves promote safety?
Historian Benjamin Justice and I have argued that institutions that enforce criminal laws play a powerful and pervasive role in providing a formal education in what it means to be a citizen. We demonstrate that, through overt and hidden curricula, the criminal justice system educates citizens on the proper relationship they should have with the state just as surely as public schools do. While the overt curriculum is framed as educative in a positive sense — encouraging or changing behavior to align with the democratic goals of the state — the hidden curriculum of the criminal justice system manages and promotes education that is the positive image’s photographic negative.
Interactions with police officers play a key role in shaping an individual’s civic identity whether one has direct contact with police or secondary contact through family and friends. Importantly, there is both an overt and a hidden curriculum that shapes those interactions. The overt curriculum of policing lies in the U.S. Constitution. According to this curriculum, police officers are empowered to constrain our liberty interests and intrude on our privacy interests, but only in ways carefully limited by law, especially certain constitutional amendments. This legal regime, taught to kids in civics classes, is designed to convey concern for rights. People’s interests in autonomy, privacy and bodily integrity ought not be subject to the whim of an individual police officer. We are a government of laws designed to restrain state power against the individual.
We might add to the law another aspect of the overt curriculum of policing, which is our expectation that police should fight crime and help residents of neighborhoods and communities to be safe. Interestingly, this motivator of police activity is of relatively recent vintage. The conventional wisdom, at least from the 1960s until the mid-1990s, was that police had very little impact on crime rates. Today, we have a different view of the capacity of policing agencies to influence crime, and because of it, broken-windows policing brought many, many people into contact with cops on the street in New York City — literally hundreds of thousands of them.
Imagine a world in which New York City residents’ experiences with being stopped were consistent with an overt curriculum emphasizing rights: that everyone be treated as a valued citizen. In that world, the message conveyed to those stopped might be, “We are working for your good and especially for the good of those who live in high-crime communities. We are fighting crime while respecting your freedom and autonomy. Our goal is to maximize freedom, your freedom from crime and predation and your freedom from the arbitrary power of the state.”
Instead, in certain areas of New York City, the hidden curriculum of such policing strategies sends the opposite message, showing certain citizens clear signals that they are a special, dangerous and undesirable class. At the end of 2011, the year in which “stop, question and frisk” was still in full force, more than 680,000 people were stopped and frisked in New York City. Approximately 10 percent of these encounters resulted in arrest or summons, which raises questions about the reasonableness of the officer’s basis for encounter in the first place. Additionally, and incredibly, New York City police officers recover weapons in fewer than two percent of encounters. And the racial disparities among these encounters is now well known.
The overt curriculum of policing, grounded in the Fourth Amendment, complicates the facts on the street, in that jurisprudence encourages anyone observing a person stopped by police on the street to say to themselves, “I wonder what they did?” The fact that nothing in the overt curriculum of policing requires police to treat those whom they stop with dignity and respect — numerous complaints about incivility suggest that police do not — compounds the problem that police practice is incongruent with the principles underlying most people’s perceptions of the legitimacy of legal authorities. Poor, urban-dwelling people of color bear the brunt not only of privacy and autonomy intrusions, but also of the constant stream of official messaging they could easily interpret — and appear to interpret — as insulting.
Just as kids do not learn all that the public schools offer in their overt and hidden curricula, people who interact with the criminal justice system do not necessarily learn the alarmingly negative lessons on citizenship that it offers. What people learn from any curriculum depends in part on the degree and frequency of exposure, and on individual and community resilience. Acts perceived as unjust have the potential to incite radicalization, resistance and solidarity — as well as anger, insecurity and despair. For those who swim in an environment saturated with negative messages about the criminal justice system, the lessons of lived experience with the hidden curriculum are pervasive and consistent. Policy-makers must consider the consonance between their policies and the lessons that people actually learn about what is most worth knowing about being an American citizen.