Managerial justice and mass misdemeanors.

• Author: Kohler-Hausmann, Issa
• Position: IV. A Qualitative Account of Managerial Misdemeanor Justice: The Disposition Process through Conclusion, with footnotes, p. 653-693

4. A QUALITATIVE ACCOUNT OF MANAGERIAL MISDEMEANOR JUSTICE: THE DISPOSITION PROCESS

   The official rules of criminal procedure and criminal law do not define how the criminal justice system actually operates in practice. Legal scholars have explored how the real-world operation of criminal law is shaped by the charging and sentencing discretion of prosecutors and judges as well as by the inclinations and structural capacities of defendants and defense attorneys. (110) In this Part, I propose something more. The formal substantive and procedural rules of criminal law do not make out an instruction manual by naming a clearly established end goal and specifying the precise means to secure that goal. Rather, substantive and procedural rules are simply the tools available in the contested and always-underspecified endeavor of social control. Frontline legal actors must decide not only how they ought to use those tools, but also exactly what the social control ends of criminal law are in the first place.

   A key insight from the scholarship of organizational sociology is that the "practical circumstances" of work shape how front-line actors in an organization make sense of their goals in the first instance. (111) The practical circumstances of everyday work encompass the concrete setting of daily tasks, the exigent demands, the situations of choice, and the available information and resources to perform tasks (including investigative capacity and, most importantly, the amount of time). The era of mass misdemeanors has produced a certain set of practical circumstances in criminal courts which, coupled with the subject matter of misdemeanor justice, shape how courtroom actors come to understand both what the animating question of their daily work is and how that question can be adequately addressed with available resources.

   Courtroom actors are constrained by the costs of obtaining information relative to their resources, by their capacity to absorb information, and by the unavailability of information." (112) With high caseloads and the constant pressure to resolve the hundreds of new cases that arrive daily, not only do courtroom actors adapt their understanding of the animating question of their daily work, but they also decide what information is relevant to that task. They must consider whether an investment in searching for more information would be profitable," given how they have defined their task. (113) In the managerial model, records of prior encounters and prior convictions play an important role in processing cases because marks of past encounters are perceived as a reliable signal of the defendant's overall governability. These records are more reliable than, say, the minimal investigation the actors will have the time or inclination to perform with respect to a specific allegation, or self-representations by defendants or even complaining witnesses. Records of prior encounters are accessible and costless to consult. Furthermore, these records speak to what has emerged as the animating moral question of misdemeanor punishment: whether this person is a persistent or occasional rule breaker.

   1. The Practical Circumstances of Arraignment

      In New York City over 57% of all misdemeanor and violation cases reach a disposition at arraignment. (114) Early and rapid disposition is an established feature of misdemeanor justice in New York City: over the past thirteen years the percentage of subfelony cases with a disposition at arraignment has fluctuated between a high of 65.5% and a low of 57.9%. (115)

      A typical arraignment courtroom may have between 100 and 200 cases to be arraigned during a shift that has about six hours of operational court time (day shifts run from 9:30 a.m. to 5 p.m. with about 1.5 hours for lunch; night shifts run from about 5:30 p.m. to 1 a.m. with typically about 1.5 hours of downtime for dinner). The prosecution, judge, and defense receive two pieces of essential paperwork before arraignment as part of the defendant's criminal court file, the complaint, which is the criminal court charging document with the charges and a brief description of the facts that make out the offense, and the defendant's rap sheet--called the NYSID sheet. (116)

      Prosecutors typically flip through the paperwork contained in the file for somewhere between one and five minutes before marking down a plea offer or recommendation on the front flap of the file if an offer is going to be made at arraignment. (117) In most boroughs the policy is to not make plea offers at arraignment on certain types of cases, for example, any case that involves a complainant (especially domestic violence cases) or driving under the influence. In those cases the prosecutor will make a bail recommendation note on the file.

      Defense attorneys meet their clients for the first time at arraignment, either in a small, caged-in interview room separated by metal grating off the holding cells in the case of arraignment of online arrests, or in the hallway in the case of DAT arraignments. Sometimes interviews are very short, if for example the attorney tells the client the offer will be an ACD and the client readily accepts. And sometimes interviews go for ten to twenty minutes. (118) Attorneys are focused on getting essential information about the arrest circumstances, but, more importantly, they are focused on getting information relevant to the bail application. Defense attorneys know that a client is better placed to fight a case successfully if she is not being held at Rikers Island (the New York City jail) on bail. (119)

      Attorneys are also focused on speed. The longer all parties take doing their part to move arraignments along, the fewer people who are arraigned during that shift, which means defendants sit in the holding pens longer while waiting to see the judge. During a night shift, if defense attorneys do not make it through the arraignment load, those defendants will have to wait another eight hours in custody before seeing a judge. Since the majority of defendants whose cases continue past arraignment are released on their own recognizance, minimizing pre-arraignment detention is a driving concern. (120)

      Some arraignment shifts have defense attorneys dedicated to "disposable" misdemeanor cases, which are likely to go to disposition at arraignment. (121) The fact that clerks and paralegals can estimate which cases will be disposable simply by looking at the charging documents and rap sheets indicates that something other than facts relating to innocence and guilt is driving this disposition process. One reason why clerks can designate large numbers of cases as disposable is that they know that prosecutors will not even seek conviction in a substantial number of first-arrest cases, or they understand that the standard offers will be readily accepted at arraignment.

      The standard offer for many cases that do not involve a complainant and represent a first arrest is an ACD (which is significant because non-complainant cases constitute the majority of misdemeanor arrests). (122) Sometimes the ACD is conditioned upon the defendant's completing a short "program" or a few days of community service. (123) This offer policy does not in practice distinguish between guilty and innocent defendants because it is very difficult to do so at arraignment. The only factual information the actors in the system have at this point is the limited paperwork in the file described above. Prosecutors and judges rarely make an attempt to make this distinction even with the limited information they do have. Whether prosecutors and judges assume all defendants are guilty, are uncertain, or are unconcerned, the managerial tactic is indistinguishable: offering conditional dismissals allows the state to mark defendants for a limited time to see if the person cycles back into the criminal justice system. (124)

      Sometimes the defense and prosecution argue about the facts of innocence and guilt, and sometimes the facts raised in those discussions affect some aspect of the offer. Yet a defense attorney can rarely, if ever, overcome at arraignment the imperative to exert some marking from the encounter. As one supervising ADA explained: "There are very few outright dismissals at arraignments, at that point we have our police paperwork and version of events, so we can't just dismiss the case." (125) The only difference between an ACD and an "outright dismissal" is the ability to impose a temporary mark on the defendant; otherwise they are legally equivalent dismissals (after the adjournment period). The mark records the fact of the prior encounter so that the judge or prosecutor can update the assessment of the defendant if he is arrested again during the adjournment period. It also puts the defendant on notice. As one judge explained an ACD disposition, it is "a low maintenance form of probation, you don't have to report because you monitor yourself." (126)

      The following two stories illustrate that prosecutors often quickly agree not to seek a criminal conviction in cases where there is weak evidence. They do, however, often insist on an ACD disposition that accomplishes a limited-term marking in lieu of granting an outright dismissal.

      In April 2011, in the Desk Appearance Ticket arraignment courtroom, John, a young, black man dressed in business casual, was being arraigned on charges of theft of services. (127) The arresting officer accused him of using a special MetroCard that provides discounted rates to people with disabilities for which he was not eligible. Because John had been given a DAT, he had time before arraignment to procure a letter from his employer, a social service agency, stating that one of his job duties included accompanying disabled people on outings. (128) John explained to his defense attorney, who explained to the judge and supervising arraignment ADA, that, on the day he was arrested, he was with a group of disabled people, and he was...