We accept uncritically the “recidivist premium,” which is the notion that habitual offenders are particularly blameworthy and should be punished harshly. In this Article, I question that assumption and propose a radical alternative. Consider the individual punished repeatedly for hopping subway turnstiles. As convictions accumulate, sentences rise—to weeks and ultimately months in jail. At some point, criminality comes to signal something other than the need for punishment. It signals the presence of need. Perhaps, the recidivist was compelled by economic or social circumstances. Perhaps, he was internally compulsive or cognitively impaired. The precise problem matters less than the fact that there was one. No rational actor of freewill would continue to recidivate in the face of such substantial and increasing sentences. My claim is that, in these circumstances, it would be better to just stop punishing.
To that end, I offer a counterintuitive proposal, which is to provide “crime licenses” to recidivists. But I limit this prescription model to only a collection of quality-of-life offenses, like drug possession, vagrancy, and prostitution. My goals are at once narrow and broad. I present the crime license as a modest opportunity to test bolder concepts like legalization, prison abolition, and defunding police. I situate the provocative proposal within a school of social action called “radical pragmatism,” which teaches that radical structural change is achievable, incrementally. I draw upon successful prescription-based, radical-pragmatic reforms, like international addiction-maintenance clinics, where habitual drug users receive free heroin in safe settings. I endorse “harm reduction,” the governance philosophy that grounds those reforms. And I imagine our system reoriented around harm reduction, with crime licenses as one pragmatic, experimental step in that direction.
Introduction
Speaking on the subject of prison-based rehabilitation, the influential sociologist, Robert Martinson, famously proclaimed that “nothing works.”1 1.Robert Martinson, What Works?—Questions and Answers About Prison Reform, Nat’l Affs., Spring 1974, at 22, 48.Show More Martinson would eventually take a rosier view.2 2.Robert Martinson, New Findings, New Views: A Note of Caution Regarding Sentencing Reform, 7 Hofstra L. Rev. 243, 244 (1979).Show More But the slogan took on a life of its own. Over the past half century, the mantra that “nothing works” has served as something of an indictment of the entire enterprise of rehabilitation and most other innovative attempts to reshape the criminal-legal system.3 3.Franklin E. Zimring, The Great American Crime Decline 28, 192–93 (2007) (“Dr. Martinson’s message, ‘Nothing Works,’ became not simply a description of the impacts of correctional programming but a default characterization of most governmental efforts to cope with the crime problem.”).Show More
I am not so sure that Martinson was wrong, however. Or, rather, he might have been right in a wholly unappreciated way. Consider the proclamation that nothing works. My claim is not that no reform works, but that there is a particular form of negative reform—simply put, doing nothing—that might work surprisingly well. At least in some contexts, a viable first step forward could be for the criminal-legal system to just stop—to stand down, to do nothing, to let go. And, controversially, doing nothing could work best for the very offenders our criminal-legal system currently hits hardest—longtime recidivists.
My claim, here, is contingent and almost wholly unproven. I do not mean to announce authoritatively: Doing nothing works! To the contrary, I merely pose the question of whether doing nothing could work—and when, why, and for whom.4 4.Infra Parts III–IV.Show More More to the point, I provide moral and prudential reasons to doubt our prevailing premises about the “recidivist premium,”5 5.Infra Part III; see, e.g., George P. Fletcher, The Recidivist Premium, 1 Crim. Just. Ethics 54, 55 (1982) (using the term “recidivist premium” to describe the sentencing enhancement for repeat offenders); see also Issa Kohler-Hausmann, Misdemeanorland: Criminal Courts and Social Control in the Age of Broken Windows 159–62 (2019) (using the term “additive imperative” for the same concept).Show More and I offer ideas to test my hypothesis naturally.6 6.Infra Part IV.Show More Concretely, I propose crime licenses—prescriptions for longtime offenders to engage in conduct otherwise criminally proscribed.7 7.Infra Part IV.Show More But I limit my analysis and proposal to one set of crimes only—low-level, quality-of-life offenses, including recreational drug possession and use, panhandling, vagrancy, subway turnstile hopping, unlicensed vending, and prostitution.8 8.Infra Part I.Show More In sum, my novel contribution is the counterintuitive claim that we could all be made better by immunizing some recidivists against arrest, prosecution, and punishment—and, perhaps more surprisingly, that the circumstances under which crime licenses are likeliest to work are somewhat obvious and predictable.9 9.To my knowledge, only one scholar has argued for anything even analogous to the immediate proposal. In a forthcoming article, Christopher Lewis pushes for a recidivist sentencing discount, based on prevailing inequities and criminogenic social conditions. Christopher Lewis, The Paradox of Recidivism, 70 Emory L.J. (forthcoming 2021). To a degree, Lewis’s article and my own are compatible, and we have traded drafts. In the places where our ideas overlap, I cite him accordingly. Our reasoning is often different. And I go substantially further than him in advocating for categorical immunity to commit certain crimes. More importantly, we adopt different conceptual frames for our respective claims, though we both briefly draw on the reasoning of the “capabilities approach.” Infra notes 254–66 and accompanying text. But I build my reforms principally around theories of harm reduction and radical pragmatism, upon which Lewis does not rely. Finally, my analysis is limited to the special context of quality-of-life enforcement and adjudication, whereas Lewis is concerned principally with felony convictions and traditional sentences of imprisonment.Show More
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Quality-of-life offenses typically involve malum prohibitum (or, at most, relatively trivial and largely victimless malum in se) conduct over which reasonable minds disagree already.10 10.See Josh Bowers & Paul H. Robinson, Perceptions of Fairness and Justice: The Shared Aims and Occasional Conflicts of Legitimacy and Moral Credibility, 47 Wake Forest L. Rev. 211, 279–80 & n.318 (2012) (discussing disagreement over the blameworthiness of malum prohibitum conduct); Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655, 1666–67 n.44 (2010) (discussing offenses that “lack inherent blameworthiness” and noting that “a community is more likely to demand criminal condemnation for a given killer than a given graffiti artist, prostitute, drug possessor, turnstile hopper, or public urinator”); infra note 352 and accompanying text (discussing shifting conceptions of disorder).Show More Plausible policy perspectives range from legalization or decriminalization to heavy-handed enforcement. And, at least with respect to marijuana policy, current approaches span the spectrum—not only across jurisdictions but also sometimes within a given jurisdiction longitudinally. New York City, for instance, has observed such a shift. During the Giuliani and first Bloomberg mayoral administrations, authorities concentrated enforcement energies on the localized practice of full-custodial arrest for marijuana offenses.11 11.Infra notes 56–60 and accompanying text (discussing “broken windows” policing).Show More But, over the past few years, the city has almost abandoned its reliance on arrest (at least for simple possession of marijuana).12 12.Infra note 136 and accompanying text.Show More And, of course, as of this writing, several jurisdictions have legalized recreational marijuana altogether.13 13.See, e.g., infra notes 309–14 and accompanying text (discussing marijuana reform).Show More With respect to a borderline offense like marijuana possession, a licensing regime could serve as a pilot program, enabling a jurisdiction to test run decriminalization, without adopting the policy categorically.
It might seem strange to decriminalize criminal conduct for a finite population only—particularly for only the most noncompliant offenders. But it is not so farfetched. There are even existing models to which we could look for guidance. At the beginning of the twentieth century, American municipalities established addiction-maintenance clinics, where doctors were authorized to prescribe opiates to recreational drug users in safe settings.14 14.Josh Bowers & Daniel Abrahamson, Kicking the Habit: The Opioid Crisis, America’s Addiction to Punitive Prohibition, and the Promise of Free Heroin, 80 Ohio St. L.J. 787, 794–95 (2019) (discussing historical addiction-maintenance programs).Show More Indeed, the medical community considered this palliative approach to be the standard of care—at least once other interventions failed. The operating philosophy was harm reduction, not law enforcement.15 15.Infra notes 210–12 and accompanying text (describing harm reduction).Show More And, though the existing data are limited, it seemed to have worked well until it was abandoned in favor of a criminal war on drugs.16 16.Infra notes 315–17 and accompanying text.Show More
More to the point, internationally, a number of cities and countries have updated the addiction-maintenance model. In Vancouver, Canada, and throughout Switzerland and Portugal, government-run clinics provide patients with free, uncontaminated, and comparatively safe narcotics for use in sterile, medically supervised facilities.17 17.Bowers & Abrahamson, supra note 14, at 797–804.Show More The data-keeping is robust, and the results are remarkable.18 18.Id.Show More Communities have enjoyed an uptick in quality of life in neighborhoods where illegal drug markets formerly flourished.19 19.Id. at 804.Show More Overdose deaths have dropped dramatically.20 20.Id. at 801.Show More And drug-dependent individuals have more readily managed to remain socially integrated—less affected by the most destructive aspects of not only drug abuse but also the criminal-legal war against it.21 21.Id. at 805.Show More
There is nothing obviously exceptional about drug policy. Just as the contemporary American drug war is counterproductive and even criminogenic, so too other forms of “punitive prohibition” are counterproductive and criminogenic.22 22.Infra note 141 and accompanying text (discussing criminogenic consequences of quality-of-life policing and adjudication). See Craig Reinarman & Harry G. Levine, Punitive Prohibition in America, in Crack in America: Demon Drugs and Social Justice 321–33 (Craig Reinarman & Harry G. Levine eds., 1997).Show More Isolation and othering produce antisocial behavior. And blame and shame produce isolation and othering. A prescription model, by contrast, holds promise as a problem-solving approach—as problem-solving crime, if you will. The starting point is an understanding that “what we did before simply was not working.”23 23.James L. Nolan, Jr., Reinventing Justice: The American Drug Court Movement 106 (2001).Show More The means are grassroots political action, self-help, and a tolerance for offending. And the primary end is harm reduction.
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Normative and instrumental concerns remain, of course. On the one side, there are the conventional law-and-order objections. Why give crime licenses to the very offenders who violate law most frequently—to the purportedly unmanageable recidivists who are (perceived to be) most deserving of punishment? Would crime licenses, in turn, engender resentment and resistance from law-abiding laypeople? Could crime licenses cause popular confusion about the legality of conduct? And what of moral hazard?24 24.Infra notes 391–405 and accompanying text (responding to objections).Show More Take the last objection, for instance. Arguably, habitual offenders would have strong and perverse incentives to commit more crimes to earn crime licenses. But there are ways, as I detail, for regulators to design a particular crime license such that recipients remain unaware of it.25 25.Infra notes 412–18 and accompanying text (discussing “acoustic separation” and crime licenses).Show More In any event, the concern could be addressed adequately simply by setting licensing prices high enough. At the right price, no rational offenders would calculate the benefit of a crime license to outweigh the punishment costs—the cumulative lifetime penalty—that must be prepaid to receive it.26 26.Infra notes 393–94 and accompanying text (discussing price setting).Show More
Consider, for instance, the seed of this project—a case from my former career as a public defender in Bronx County, New York. I had a client who had amassed well over thirty prior misdemeanor convictions for subway turnstile hopping (or “theft of services”). Theft of services is an A-level misdemeanor, punishable by up to a year in jail.27 27.N.Y. Penal Law § 165.15(3) (McKinney 2018).Show More However, offenders rarely face much, if any, time. Initial offenses tend to result in noncriminal dispositions. Subsequent offenses lead to misdemeanor convictions and days or, at most, weeks in jail. The longest sentences—months behind bars—are reserved for those few offenders, like my client, who do not (or cannot) stop. This is the “recidivist premium” in action. Escalation is the rule.
For my client, this translated to a plea offer of nine months. After pushing unsuccessfully for less, I quipped in frustration: “We would all be better off if the city would just give my client a lifetime transit pass.” It was a joke. But it was also true. My client and his community would have been better off, and the system and society would have been better off. Deterrence had not worked. Incapacitation had cost the city tens of thousands of dollars and had imposed serious social consequences. And, unsurprisingly, the city’s infamously harsh jails had failed to do anything to rehabilitate him.28 28.See, e.g., Torture Island’s Final Sentence: Rikers, One of America’s Most Notorious Jails, is to Close, Economist (Oct. 26, 2019), https://www.economist.com/united-states/2019/10/26/rikers-one-of-americas-most-notorious-jails-is-to-close [https://perma.cc/PAR8-S84X] (describing conditions at New York City’s “most notorious jail”). See generally Daniel S. Nagin, Francis T. Cullen & Cheryl Lero Jonson, Imprisonment & Reoffending, 38 Crime & Just. 115, 116, 121 (2009) (discussing criminogenic effects of incarceration); Don Stemen, The Prison Paradox: More Incarceration Will Not Make Us Safer, Vera Inst. Just. 2–3 (July 2017) (same); Benjamin Ewing, Prior Convictions as Moral Opportunities, 46 Am. J. Crim. L. 283, 330 (2019) (same).Show More More to the point, in order to rehabilitate my client, the system would have had to reckon with what was wrong and how to fix it. The retributive assumptions of the recidivist premium dictate that my client was a willing scofflaw or worse—that he was on notice of what the law forbade, and still he persisted.29 29.Infra notes 124–34 and accompanying text (discussing rationales for the recidivist premium).Show More He needed to be taught a lesson, and it was his responsibility to learn from it. But recidivism does not inexorably screen for blameworthiness. At a certain point, it screens for the precise opposite.30 30.Infra notes 228–31 and accompanying text (discussing recidivism as a screen for socioeconomic deprivation or internal compulsion or irrationality).Show More
Why had legal coercion—in the form of increasingly punitive carceral sticks—failed to cow my client? The least plausible explanation is human agency and corresponding poor choice—that my client elected freely to break the rules. Likelier, he suffered from a pressing constraint on his will—some form of internal compulsion or situational duress. Why was his “crime-resistance capital” so low?31 31.Louis Michael Seidman, Entrapment and the “Free Market” for Crime, in Criminal Law Conversations 493, 499–500 (Paul H. Robinson, Stephen P. Garvey & Kimberly Kessler Ferzan eds., 2009); see also infra notes 222–27 and accompanying text (discussing luck, freewill, and the “American Dream”).Show More Why did he shell out so much (repeated and ever-longer stints in jail) for seemingly so little (free transit rides)? Simply put, at a certain point (reached long before he became my client), his crimes stopped paying. And that is precisely the point. Logically, his particular course of recidivism screened optimally for a crime license.32 32.See infra notes 374–90 and accompanying text (discussing optimal screening).Show More It demonstrated the ineffectiveness and injustice of his personal cycle of crime, capture, and escalating punishment.
To be sure, an optimal screen is not a perfect screen. Even a well-designed crime license would leave room for some games-playing at the margins. But “Blackstone’s Ratio” teaches us that a just system abhors inappropriate penalties more than unwarranted windfalls.33 33.Infra notes 407–10 and accompanying text (discussing “Blackstone’s Ratio” and unwarranted windfalls).Show More And this concern with inappropriate punishment is of particular relevance in the context of quality-of-life policing. Much of the work of many modern police departments consists of state attempts to use stops and arrests for low-level offenses to maintain public order and exert social control over predominately poor and minority populations.34 34.See, e.g., Josh Bowers, Punishing the Innocent, 156 U. Pa. L. Rev. 1117, 1119, 1122 (2008) (observing that most criminal court cases are petty nonfelony cases); Alec Karakatsanis, Usual Cruelty: The Complicity of Lawyers in the Criminal Injustice System 39, 59 (2019) (noting that nationally more people are arrested for marijuana offenses than all violent crimes combined); Malcolm M. Feeley, The Process Is the Punishment: Handling Cases in a Lower Criminal Court 40–42 tbl.2.1 (1979) (describing study of Connecticut criminal court in which 58% of cases were “crimes against public morality” or “crimes against public order”).Show More These groups disproportionately shoulder the significant costs and very real dangers of inequitable and coercive policies and practices.35 35.Infra notes 99–109 and accompanying text; Paul Heaton, Sandra Mayson & Megan Stevenson, The Downstream Consequences of Misdemeanor Pretrial Detention, 69 Stan. L. Rev. 711 (2017) (discussing disparate impact and “downstream consequences” of quality-of-life policing, prosecution, and punishment).Show More It is no coincidence that so many infamous police killings started with efforts to combat perceived low-level disorder and rule-breaking. Officers suspected Eric Garner of selling loose cigarettes without a tax stamp and George Floyd of passing a counterfeit bill.36 36.See Al Baker, J. David Goodman & Benjamin Mueller, Beyond the Chokehold: The Path to Eric Garner’s Death, N.Y. Times (June 13, 2015), https://www.nytimes.com/2015/06/14/nyregion/eric-garner-police-chokehold-staten-island.html [https://perma.cc/6A7S-TRT2] (“This was not a chance meeting on the street. It was a product of a police strategy to crack down on the sort of disorder that, to the police, Mr. Garner represented.”); see also Josh Bowers, Annoy No Cop, 166 U. Pa. L. Rev. 129, 210–11 (2017) (discussing the death of Eric Garner); Utah v. Strieff, 136 S. Ct. 2056, 2071 (2016) (Sotomayor, J., dissenting) (“They are the canaries in the coal mine whose deaths, civil and literal, warn us that no one can breathe in this atmosphere.”).Show More These are the stakes of petty-crime enforcement.
But these tragic incidents (and our current cultural moment) raise the contrary objection that my crime-license proposal would be piddling—too little, too late. I am sensitive to the worry. Today, we find ourselves in a moment of movement, with growing consciousness and even modest enthusiasm for radical ideas, like “defunding police” and “abolishing prisons.”37 37.See Dorothy E. Roberts, The Supreme Court, 2018 Term—Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 7–8 (2019); Paul Butler, Abolition Is Better Than Reform, and It Is Not Dangerous (Aug. 4, 2020) (unpublished manuscript) (on file with author); Karakatsanis, supra note 34, at 83 (endorsing “abolition of the police, closing jails and prisons, reparations, new paradigms of restorative justice, and broader economic divestment from punishment”).Show More So, why am I shying away from big steps now? I am on the record, almost a decade ago, calling for the wholesale decriminalization of malum prohibitum conduct.38 38.Bowers & Robinson, supra note 10, at 279–80 n.318; see also Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vand. L. Rev. 1055, 1058 (2015) (overviewing rationales for the decriminalization of misdemeanors).Show More Why not argue for at least as much here? Why settle for the incremental approach? The answer is that it is easy enough to get on a soapbox and demand sweeping structural reform when there is little hope of it happening. But, especially in times like these, when the doors of opportunity pry open, the need grows to lay the appropriate groundwork—to determine what works and what does not and to push to persuade the unpersuaded-but-persuadable.39 39.See Kimberlé Williams Crenshaw, Race, Reform, and Retrenchment: Transformation and Legitimation in Antidiscrimination Law, 101 Harv. L. Rev. 1331, 1385–86 (1988) (“[U]ntil whites recognize the hegemonic function of racism and turn their efforts toward neutralizing it, African-American people must develop pragmatic political strategies. . . . It is a struggle to create a new status quo through the ideological and political tools that are available . . . maneuvering within and expanding the dominant ideology to embrace the potential for change.”); see also Richard Delgado, The Ethereal Scholar: Does Critical Legal Studies Have What Minorities Want?, 22 Harv. C.R.-C.L. L. Rev. 301, 307 (1987) (arguing that structural change is sometimes best achieved incrementally and that “[t]he CLS critique of piecemeal reform is familiar, imperialistic and wrong”).Show More Pragmatism counsels a measure of caution.40 40.Infra notes 157–64 and accompanying text (discussing classical and radical pragmatism); see also Michael C. Dorf & Charles F. Sabel, A Constitution of Democratic Experimentalism, 98 Colum. L. Rev. 267, 284 (1998) (discussing experimentalism as a means for the “incremental realization” of social goals).Show More Social movements depend upon political will, and political will is shaped by proof of success.41 41.Infra notes 432–40 and accompanying text (discussing pragmatic efforts to build political support).Show More
But there is likewise a danger of missing the moment. So, small steps must be taken deliberately, with an appropriate focus on radical change. Roberto Mangabeira Unger sketched an attractive frame for this approach to social action, which he labeled “radical pragmatism”—a style of “political experimentalism” or “existential bootstrapping” that consists of “using the smaller variations that are at hand to produce the bigger variations that do not yet exist.”42 42.Roberto Mangabeira Unger, The Self Awakened: Pragmatism Unbound 8, 43 (2007).Show More According to Unger, “it is about changing the context of established arrangement and assumed belief, little by little and step by step, as we go about our business.”43 43.Id. at 43; see also Roberto Mangabeira Unger, The Critical Legal Studies Movement 110 (1986) (discussing “opportunities for experimental revisions of social life in the direction of the ideals we defend,” pursued “piecemeal rather than only all at once”).Show More He distinguished this form of incrementalism from the incrementalism characteristic of classical American pragmatism—a “shrunken pragmatism” that, per Unger, too often leads only to “standing and waiting” and “singing in our chains.”44 44.Unger, supra note 42, at 1, 6.Show More Instead, the aim is to keep the radical objective always in sight while relying upon “piecemeal, experimental revision” to “shorten the distance” to structural reformation and to define more sharply the appropriate contours of the radical agenda and reformation.45 45.Id. at 7 (“[O]ur societies and cultures may be so arranged as to facilitate and to organize their own piecemeal, experimental revision. We then shorten the distance between routine moves within a framework and exceptional moves about the framework.”).Show More In a nutshell:
Society and culture may be so arranged as either to extend or to narrow the distance . . . . Our interest is to narrow this distance . . . . [T]he primary mode of transformative politics is radical reform, the piecemeal transformation of the structure that may nevertheless become radical in outcome if cumulatively pursued under a certain conception . . . . [W]hat this goal entails is a high-energy democracy—a democracy that raises the temperature and hastens the pace of politics and that multiplies occasions for the creation of counter models of the future in different localities and sectors.46 46.RSA, Freedom, Equality, and a Future Political Economy, YouTube (Dec. 11, 2013), https://www.youtube.com/watch?v=_CBW3aFvxVs&ab [https://perma.cc/2DBE-ZV3G] (emphasis added) (beginning at 4:36 and continuing at 5:02, 8:37, and 16:37).Show More
Today, we have just such a “high-energy democracy,” but we do not quite know what to do with it.47 47.Id. at 16:37.Show More We do not know precisely what we want. There is no generally accepted understanding of what it means to, say, defund the police or abolish prisons.48 48.See Butler, supra note 37, at 20 (“[A]bolition remains under-theorized, including on the important question of precisely what it is that its advocates want to abolish . . . . And what will the police do, if ‘locking people up’ is no longer part of their job description?”); Roberts, supra note 37, at 6 (“It is hard to pin down what prison abolition means.”).Show More Radical activists and sympathetic academics offer a range of prescriptions, often rooted in notions of harm reduction or adjacent theories.49 49.See, e.g., Allegra M. McLeod, Prison Abolition and Grounded Justice, 62 UCLA L. Rev. 1156, 1156 (2015) (arguing in favor of “gradual decarceration”); Butler, supra note 37, at 20–21 (distinguishing between different conceptions of abolition and different types of abolitionists, including “justice abolitionists” and “instrumental abolitionists”); Roberts, supra note 37, at 7–8 (noting that abolition is premised upon the notion that “we can imagine and build a more humane and democratic society that no longer relies on caging people to meet human needs and solve social problems”); Allegra McLeod, Envisioning Abolition Democracy, 132 Harv. L. Rev. 1613, 1615 (2019) (“Justice for abolitionists is an integrated endeavor to prevent harm, intervene in harm, obtain reparations, and transform the conditions in which we live.”).Show More Short of categorically closing down institutions, dismantling police forces, or entirely stripping department budgets, these movements need test cases to determine, in the offing, what is practical and appropriate. This is hard work. But, consistent with the virtues of federalism, we may experiment with the “creation of counter models of the future in different localities and sectors” in efforts to discern the shape of ideas in practice.50 50.RSA, supra note 46, at 16:48; see also Patrick Sharkey, Why Do We Need the Police?, Wash. Post (June 12, 2020), https://www.washingtonpost.com/outlook/2020/06/12/defund-police-violent-crime/ [https://perma.cc/6UMK-NLBH] (proposing “a demonstration project that is both more cautious and more radical than the call to defund the police,” and demanding “rigorous testing” of the pilot program); infra notes 419–27 and accompanying text (discussing radical experimentation, localism, and the virtues of federalism).Show More
In this vein, my proposal for crime licenses is akin to the now-defunct Capitol Hill Autonomous Zone (“CHAZ”) in Seattle, Washington. The CHAZ was a grassroots experiment in eliminating police from a particular geographic area; my proposal would be an experiment in eliminating enforcement against a particular population. At the time I initially drafted this Article, the future of the CHAZ remained unclear. I predicted that the collective would likely collapse under its own anarchic weight.51 51.And it arguably did. After a series of shootings, the mayor issued a dispersal order and the police moved in. Brendan Kiley, Ryan Blethen, Sydney Brownstone & Daniel Beekman, Seattle Police Clear CHOP Protest Zone, Seattle Times (July 1, 2020), https://www.seattletimes.com/seattle-news/seattle-police-clearing-chop-protest-zone/ [https://perma.cc/5P8P-UW4R]. We can debate whether law enforcement intervention constitutes a collapse or dismantlement. In any event, the CHAZ had its problems and is now no more.Show More But, even so, I noted that we could learn from the effort. The alternative, I suggested, was that the CHAZ might thrive and reveal a viable, unorthodox social order. Obviously, that did not happen. But, even so, I imagine that some former participants still perceive the experiment as other than a total failure—that they experienced moments of beauty where others saw only disorder and violence. This is the nature (and virtue) of experimentation. We take risks and then track and learn from substantive and tactical missteps and successes. We anticipate what we can; we prepare for pitfalls; we wish for the best; and we debate, democratically, about our means, ends, and results.52 52.Infra notes 196–204 and accompanying text (discussing radical pragmatism).Show More
This is not to say that anything goes—just that the radical pragmatist need only formulate a hypothesis, develop plausible means to test it, and establish criteria to evaluate progress toward the preestablished revolutionary goal. For this project, the hypothesis is that sometimes the best first step to promote a healthy social order is to stop ordering people around. The means are to transition resources and authority (somewhat) from law enforcement to social services. And the goal is to replace (to the extent possible) entrenched structures of hierarchy with a commitment to individual and collective wellbeing.53 53.Sharkey, supra note 50 (“The idea that residents and local organizations can play a central role in creating safe and strong communities is not new, and it is not particularly controversial. And yet we have never made the same commitment to these groups that we make to law enforcement . . . . We have models available, but we’ve made commitments only to the police and the prison system.”).Show More It would be a mistake, of course, to stop with crime licenses, autonomous zones, or anything else. All such proposals are, at best, fragments of a mosaic—piecemeal reforms designed to close the gap between here and there. Thus, the Movement for Black Lives has not only deemphasized policing but also highlighted the significance of social work.54 54.Phillipe Copeland, Let’s Get Free: Social Work and the Movement for Black Lives, 5 J. Forensic Soc. Work 3 (2016).Show More A holistic methodology demands negation and addition—a pull back from criminal legalism and a commitment to alternative harm-reduction measures.55 55.Infra Sections III.C–D.Show More On this reading, a prescription model would constitute only a part of a broader social movement, consisting of much more than tolerance for rule breaking. In fact, a holistic reform agenda would lay bare an ugly truth about the prevailing paradigm’s relationship to the very idea of tolerance: it is punitive prohibition that is the too-tolerant regime—too tolerant of fractured lives and fractured communities, of food and housing insecurity, of employment and education inequities, of economic and racial subordination. Ours is a system that tolerates all but tolerance for those who offend the status quo.
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This Article proceeds in four parts. In Part I, I examine “broken windows” policing theory and its entrenched assumptions about supposedly appropriate or preordained meanings of disorder and quality of life. I discuss the manner by which legal officials, in fact, use crime-making and discretion to settle upon and coercively impose subjective conceptions of these contested concepts. I then trace New York City’s recent history with broken windows policing. I look to the city’s experience because it is a paradigmatic example of quality-of-life policing in practice and, more to the point, because data are there. In Part II, I situate quality-of-life policing within the dominant landscape of crime-control governance. And I explain what it means to be a recidivist within that archetype. In Part III, I sketch alternative modes of social organization, oriented principally around harm reduction and related ideas, like forgiveness, human capabilities, autonomy, public health, social solidarity, and human flourishing. I survey positive examples of radical-pragmatic experiments—particularly international and domestic drug reforms. And I compare the results with conventional criminal-legal approaches. In Part IV, I examine the parameters of a defensible crime license. And I outline three potentially effective designs. I then return to New York City to discuss a grassroots radical-pragmatic experiment already underway. Finally, in the conclusion, I visit the question of whether the upheavals of our current historical moment have made radical-pragmatic structural reform more or less viable.