Reflecting on the Subject: A Critique of the Social Influence Conception of Deterrence, the Broken Windows Theory, and Order-Maintenance Policing New York Style

Bernard E. Harcourt, Columbia Law School


There has been overwhelming support for order-maintenance policing, in particular for New York City's quality-of-life initiative, in the media, among public officials and policy-makers, and in academia. In the legal academy, social norm proponents embrace order-maintenance policing as a leading policy recommendation along the "new path of deterrence." Dan Kahan argues that the social influence conception of deterrence best explains the broken windows theory: eliminating minor disorder will deter serious crime because of the social influence that order exerts on the disorderly and on law-abiders. Kahan specifically endorses New York City's quality-of-life initiative. In this Article, I critically explore the quantitative evidence and theoretical arguments marshaled by social norm proponents. I argue, first, that the social scientific evidence in support of the deterrence claim is lacking. I replicate Wesley Skogan's quantitative study and demonstrate that it does not support the claim that disorder and crime are causally related. I also review the numerous explanations for the sharp drop in crime in New York City and suggest that there is insufficient evidence to conclude that the quality-of-life initiative accounts for the precipitous decline. At the theoretic level, I argue that the social influence conception of deterrence relies on a traditional approach to sociology that does not question sufficiently its underlying categories, especially the categories, on the one hand, of "committed law-abiders" and "individuals otherwise inclined to engage in crime" and, on the other, of order and disorder. I explore one contemporary critique of the sociology underlying the social influence theory. I suggest that the rhetoric of order masks, in New York City, a straightforward policy of aggressive misdemeanor arrests. I emphasize the hidden costs of this policy, which include a sharp increase in complaints of police brutality, the ordeal of arrest for many citizens, a disproportionate effect on minorities and a troubling delegation of the power to define deviance. I conclude by suggesting the public policy implications and proposing ways of addressing crime prevention within the framework of a thicker social theory.