Legalizing Pot and “Incapacitation”

(Graph.) Catching up on blogs, I saw two interesting posts from Andrew Sullivan’s guest bloggers. First up, Patrick Appel notes: “Will Legalizing Pot Double Use? We have no reason to think so…” and goes into a study about the legalization of pot.

70 minutes later, David Frum writes: “In the 1990s, the US achieved amazing success against crime, in large part thanks to a new willingness to send more criminals to jail longer. ‘Incapacitation’ is the technical term for this strategy, and it worked. But incapacitation occurs at a huge human and financial cost.”

These are two different people, but I sometimes see this from conservatives and libertarians: the idea that the Broken Windows approach to crime, especially in the 1990s, was a good move worth defending in retrospect, but that the laws criminalizing marijuana have got to go. Leaving aside the empirical dubiousness of the approach working, I question what people think Broken Windows did in practice?

From Harcourt and Ludwig’s Reefer Madness: Broken Windows Policing and Misdemeanor Marijuana Arrests in New York City, 1989–2000 (my bold):

By the year 2000, arrests on misdemeanor charges of smoking marijuana in public view (MPV) had reached a peak of 51,267 for the city, up 2,670% from 1,851 arrests in 1994. In 1993, the year before broken windows policing was implemented, a New York City police precinct made, on average, 10 MPV arrests per year; by 2000, the police precincts were averaging 644 MPV arrests per year—almost 2 arrests per day per precinct. These misdemeanor MPV arrests accounted for 15% of all felony and misdemeanor arrests in New York City in 2000. That same year, New York City marijuana arrests represented 92% of the total 67,088 marijuana-related arrests in the state of New York (Golub et al., 2007).

In addition, the pattern of arrests disproportionately targeted African Americans and Hispanics in relation to their representation in the resident population. Although both groups each represent about 25% of New York City residents, they compose 52% and 32% of MPV arrestees for 2000–2003, respectively. African-American and Hispanic MPV arrestees have also fared worse in the criminal justice system: They were more likely than their white counterparts to be detained before arraignment (2.66 and 1.85 times more likely, respectively), convicted (both twice as likely), and sentenced to additional jail time (4 and 3 times more likely, respectively) (Golub et al., 2007).

Part of the “Incapacitation” strategy Frum celebrates involved putting the maximum number of arrests and maximum penalties on marijuana smokers. A 2600% increase in New York, with significantly more detainment and jail time for minorities. Broken Windows isn’t about being harder on murderers. It’s about a radically more aggressive enforcement of minor misdemeanor laws, such as those surrounding marijuana, because by not enforcing those laws disorder will set in and increase the potential for future crimes. Today’s pot smoker is tomorrow’s hardened criminal.

That’s insane, but so is our criminal justice system. And of course, once one gets in the net of the criminal justice system, it’s that much harder to get out, and easier to sink deeper. I wonder if the open-minded conservatives and libertarians who read Andrew Sullivan see a contradiction here. There’s nothing that makes marijuana safer in 2010 than it was in 1994, nor any reason to believe people would be more or less of a public menace for using it. So wouldn’t pushing for marijuana decriminalization now mean that something was wrong with Broken Windows and Incapacitation in the first place?

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16 Responses to Legalizing Pot and “Incapacitation”

  1. The Marooner says:

    All of that is certainly true, but didn’t “broken windows” target other minor misdemeanors as well? I remember turnstile-jumping being discussed rather often. Were these other quality-of-life crimes not prosecuted as often as my perception says they were? Does “broken windows” have real-world substance outside MPV arrests?

  2. Sean DeCoursey says:

    One thing you’re missing in your post is that criminals often commit more than one kind of crime. People arrested for smoking pot are often guilty of far more. The idea behind broken windows enforcement isn’t just promoting a sense of order by aggressively prosecuting minor violations. It’s also catching people who are wanted for/committing more serious crimes for minor violations that you can prosecute them on.

    One side effect of this policy is that many people whose only crimes are minor are caught in the enforcement net and then put into the system. When people debate the criminal justice system they often take up a position, as you have done here, and then defend it without acknowledging that the opposite position generally has a lot going for it too.

    “broken windows theory” is a gross oversimplification of the drop in crime rates in the 1990’s anyway. More important were advances in methodology and the advent of scientific analysis of crime data based on geographic location, as well as numerous advances in police procedures and officer education and training, and of course, the fact that for whatever reason (Freakonomics argues it was the Roe v Wade decision) we just had a lot fewer 6%’s come through society vs. previous generations.

    • Kevin Feeley says:

      “People arrested for smoking pot are often guilty of far more. ”

      How does this logic hold at all?
      Considering the sheer quantities of adults on this planet that regularly consume cannabis, your statement could hold the same meaning by stating it as
      “People arrested for drinking water are often guilty of far more.”
      Cannabis is a non-toxic foodstuff that happens to cause an acute neurological response in many higher vertebrates. This fact does not lead to the conclusion that the consumption of said foodstuff will lead to socially aberrant behavior.

      So, your statement of “One thing you’re missing in your post is that criminals often commit more than one kind of crime.” makes the assumption that the consumption of cannabis should be a crime, therefore it should be illegal.

      Of course, if one consumes cannabis (a crime), then this leads to further consumption of cannabis (still a crime), your logic holds. This all depends on keeping a non-toxic flower illegal.

      Please discuss.

    • Nick LeCompte says:

      “People arrested for smoking pot are often guilty of far more.”

      Yes, they’re often guilty of possession. But that’s about it. Besides, even if they were “often guilty of far more” (a claim I’d really like to see evidence for), there’s a thing called “probable cause” that protects their rights. Prosecuting people for smoking marijuana in order to probe them for more serious crimes is of dubious constitutionality, and a terrible policy.

      I’m guessing you don’t know very many marijuana smokers.

  3. als says:

    not that I neccesarily buy into the broke windows hypothesis…but doesn’t it say that it is the atmosphere of rule breaking whose subtle effects cause the increase in crime? it isn’t the fact that it is marijuana being smoked that causes the crime, it is the atmosphere of defiance of the law. so, if marijuana was decriminalized its smoking would no longer have any broken window effects.

  4. Carol Wyatt says:

    “People arrested for smoking pot are often guilty of far more.” I can only speak from personal experience — not scientific analysis, but experience calls “Bullshit” I am a 56 year old successful, sales professional in the software world. I and probably ; 50% of the people in my social and professional worlds smoke dope recreationally. We are solid citizens; we have decent jobs; we take care of our families; we keep nice lawns. We are are no better or worse citizens than our friends who don’t partake. Somehow, we have managed to avoid a life of murder and mayhem, despite the fact that we thorough enjoy and often smoke pot. go figure…

  5. Rhayader says:

    I certainly was bothered by Frum’s nonchalant treatment of world-record mass imprisonment, but given the author I wasn’t particularly surprised. The idea that simply locking people up and throwing away the key improves society is unpractical and unsustainable.

  6. Aaron says:


    I don’t believe your description of the theory is correct. The Broken Window theory is not that the people committing small, easily provable crimes (such as drug possession) are probably guilty of larger crimes. In fact, your second statement (“People arrested for smoking pot are often guilty of far more”) is simply not supported by the evidence, at least if you believe in the presumption of innocence.

    The Broken Window theory is that tolerance for minor crime creates an environment that leads to larger crime. The namesake analogy offered by Wilson and Kelling in their article “Broken Windows” is this:

    Consider a building with a few broken windows. If the windows are not repaired, the tendency is for vandals to break a few more windows. Eventually, they may even break into the building, and if it’s unoccupied, perhaps become squatters or light fires inside.

    If the broken windows policy of NYC targeted marijuana possession, that seems like a rather cynical and inappropriate application of the theory (whether or not the theory is valid). The theory seems better applied at property damage, small-time theft, etc. Those are the activities that arguably can lead to an environment of increasing disrespect for the rights of others and thus increased crime.

    Even were marijuana a so-called gateway drug, that would imply a health issue, not a criminal justice issue. We all recognize why property theft or damage, assault, etc. should be illegal by the very result of those activities. Prohibition of drug use, however, is predicated on the belief that the drug use will necessarily lead to future crime, not because the environment has increased tolerance for crime, but because the drug user has debased his or her own moral system, or because the presumed addiction will overpower their self-control and integrity.

    In other words, broken windows is a sociological theory, whereas drug prohibition is a psychological theory. It sounds as if Giuliani’s version of broken windows conflated the two, and instead just wound up being a mild instance of ethnic cleansing.

  7. Jim says:

    I agree with Aaron’s assessment that the focus should be on crimes that affect other peoples’ rights. The likelihood of getting caught should be high and the punishment relatively severe. Personally, I’d be happy to see personal use drug crimes completely eliminated and enforcement refocused on violent crime and property crime. In an environment of chaos, psychopaths calculate that the cost of committing a crime is low. Remove the sense of chaos and the psychopaths will recognize the higher cost.

    IMO, the trick is to create the necessary environment of police control and authority without creating an oppressive police state. It’s an unfortunate truth that these tend to go hand-in-hand. If you give the police the right to beat the crap out of any and all suspects, you’ll get less crime. The broken windows approach is a way to slightly temper this by limiting the abuse to a sub-population. Still, it is a pretty tough trade off.

    The harsh reality is that the psychopaths among us have little empathy or respect for others and only respond to authority and absolute control. We somehow have to create fear in these folks without diminishing our freedom and privacy or creating a huge injustice for the innocents caught up in the dragnet. Broken windows seems to be a workable approach to this if implemented carefully.

    • Matunos says:

      I appreciate the agreement, Jim, but I wouldn’t go so far as to label all social miscreants as psychopaths (or sociopaths).

      Actual psychopathy is pretty rare, and I don’t think broken windows is meant to deal with a society overrun by psychopaths.

      • Jim says:

        Fair enough – It was a bit heavy handed to go with psychopaths. I thought I had read somewhere that around 1% of the population, including most people incarcerated for violent and property crimes, actually satisfy the requirements of the term.

        But this obviously isn’t my field, so I’ll stand corrected and accept your suggested replacement term of “social miscreants.”

  8. Jim says:

    Oh, and here’s a slightly radical idea on prostitution. The libertarian in me would like to see prostitution decriminalized, but I realize that there would be serious societal downsides to this. So as a compromise, I propose we leave the rules for johns as is, but change the deal for hookers.

    As long as a hooker has a condom and a printout of a recent clean blood test on their possession, they get a $100 citation (and no arrest). If they can’t produce these two things, they get arrested and face the standard prostitution charge.


  9. Elvis says:

    These days, such laws are there to support the big business of prisons and nothing more. Eliminate the cannabis users and you’ll have a lot of empty cells.

  10. La Gl says:

    Using the logical progression here, I would like to point out that the people who robbed America , and destroyed our economy, and sent us into unwinnable wars based on lies, and damaged the Gulf all wear neckties. Therefore, it seems logical to throw to the ground anyone wearing a neck tie since they are obviously psychopaths bent on destroying our way of life. All of their assets should be immediately confiscated until they can prove their innocence.
    I’s only fair…

  11. Tim Lee says:

    Frum is a conservative. I’m no sure why you’re tarring libertarians with this brush. There are a few libertarians who think incapacitation was a good policy, but I think they’re in the minority. Most libertarians have long blamed the drug war for the huge increase in incarceration and argued that this was a bad thing.

    I’m also not sure if it’s right to equate mass incarceration with “broken windows.” As I understand it, the “broken windows” theory says that if you catch and deter minor crimes, you won’t get major ones. So I wouldn’t expect the policy to have a big effect on incarceration rates. There’s a big difference between sentencing a 15-year-old to community service for grafitti and sentencing a 19-year-old to life in prison for dealing pot.

  12. Pingback: Day of Action on Foreclosures: Occupy Homes Coverage, Talking with Neighbors and Relevant Studies | Rortybomb

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