Suffolk, County, MA – For years, advocates of Broken Windows Theory argued that cracking down on low level offenses and visible signs of crime will help prevent more serious crimes from occurring. But critics have pointed to disproportionate policing and prosecution of people of color, mass incarceration, and the detrimental impacts of that on the people caught up in the system.
A study released this week by the National Bureau of Economic Research found that declining to prosecute many misdemeanors and other non-violent offenses does not harm public safety and actually can lead to less crime committed in the future.
The study looks at a recent policy change in Suffolk County imposing a presumption of non-prosecution for a set of nonviolent misdemeanor offenses, and the study found “the likelihood of future criminal justice involvement fell, with no apparent increase in local crime rates.”
In a tweet on Monday, Suffolk County DA Rachael Rollins said, “I have & always will be concerned with public safety, but prosecution is not always the best way of ensuring safety. Adopting declination and diversion policies is not only the right thing to do, it’s the smart thing to do. The data doesn’t lie.”
The study was done by Amanda Agan and Jennifer Doleac, economics professors at Rutgers and Texas A&M universities, and Anna Harvey, a politics professor who runs the public-safety lab at New York University.
The study focused on 67,500 misdemeanor arrests in the Boston area between 2004 and 2018. Nearly 80 percent of such arrests at that time were prosecuted.
“Non-prosecution reduces the rates at which nonviolent misdemeanor defendants are charged with subsequent violent offenses by 64%, with subsequent disorder/property offenses by 91%, and with subsequent motor vehicle offenses by 63%,” the study found.
“Our findings imply that not prosecuting marginal non-violent misdemeanor defendants substantially reduces their subsequent criminal justice contact,” the authors wrote. “These findings are 
troubling, given the volume of misdemeanor prosecutions pursued in the United States.”
The researcher note that there are two possibilities here. On the one hand, “By allowing those charged with nonviolent misdemeanor offenses to avoid the potential negative consequences of a criminal prosecution (including time away from work and family, a criminal record of an arrest, and a possible criminal record of a conviction), alternatives to misdemeanor prosecution may decrease defendants’ subsequent criminal justice contact.”
On the other hand, “alternatives to misdemeanor prosecution may reduce specific deterrence, causing increases in future criminal behavior.”
This they argue is “an empirical question” but they find there “is little evidence to guide prosecutors’ policy choices.” Indeed, “Misdemeanor cases make up over 80 percent of the cases processed by the U.S. criminal justice system. Yet we know little about the causal impacts of misdemeanor prosecution or nonprosecution.”
In recent years, some prosecutors have been cutting back on prosecuting such low level offenses.
Kim Foxx, the Cook County State Attorney, told the Chicago Sun Times on Monday that police ought to heed this new study showing that misdemeanor prosecutions increase the likelihood of a person committing more crimes.
They report that Foxx has “emphasized that police should search for alternatives to prosecuting people for non-violent misdemeanors, crimes that carry a penalty of up to a year in jail.”
Unlike some areas, where prosecutors decide whether to initiate a misdemeanor prosecution, “the police in Chicago and the Cook County suburbs can unilaterally charge a person with a misdemeanor and prosecutors then must decide whether to move forward with the case or dismiss it.”
Foxx’s office has made it a policy, however, to decline to prosecute many of these cases “including low-level shoplifting cases and drug offenses. Defendants in many of those cases have been diverted into counseling and treatment instead of going to trial or pleading guilty.”
Meanwhile, Baltimore City State’s Attorney Marilyn Mosby said last week the city will no longer prosecute for prostitution, drug possession and other low-level offenses.
“Today, America’s war on drug users is over in the city of Baltimore. We leave behind the era of tough-on-crime prosecution and zero tolerance policing and no longer default to the status quo to criminalize mostly people of color for addiction. We will develop sustainable solutions and allow our public health partners to do their part to address mental health and substance use disorder,” said Mosby in a statement on Friday.
Last year, in response to the COVID crisis, the office decided to stop prosecuting a myriad of low level offenses.
“The results of these policies have been nothing short of successful. According to data from the Department of Public Safety and Correctional Services, the overall incarcerated population in Baltimore City is down 18% during COVID and the data reveals there has been a 39% decrease in people entering the criminal justice system compared to this time last year,” they report.
Moreover, violent crime is down 20 percent March 13, 2020, to March 13, 2021, and property crime is down 36 percent over the same period.
“Clearly, prosecuting low-level offenses with no public safety value is counterproductive to the limited law enforcement resources we have. When the courts open next month, I want my prosecutors working with the police and focused on violent offenses, like armed robbery, carjacking cases and drug distribution organizations that are the underbelly of the violence in Baltimore, not using valuable jury trial time on those that suffer from addiction,” said State’s Attorney Marilyn Mosby.
“Our results imply that a prosecutor’s decision to not charge a defendant with a nonviolent misdemeanor significantly reduces their probability of future criminal legal contact,” Rutgers University professor Amanda Agan, told WBUR. “Or put the other direction: prosecuting these defendants actually decreases public safety.”
DA Rollins, when she took office in 2019, drew criticism for this position of directing her assistant DAs to decline to prosecute nonviolent misdemeanor offenses.
However, the study found “significant reductions in subsequent criminal complaints for violent, disorderly conduct/theft, and motor vehicle offenses.”
“We see no evidence that her inauguration and this expansion of presumptive non prosecution decreases public safety,” Agan told WBUR. “If anything, it increases it.”
Mosby had a similar belief.
“Clearly, the data suggest there is no public safety value in prosecuting low-level offenses,” Mosby concluded at a news conference.
—David M. Greenwald reporting
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