The adjudication of minor offenses in New York City.

• Author: Weinstein, Ian

So I came to the City to shop with my friend. First we were downtown and I bought the knife. You know, they sell them right on the sidewalk in front of the stores for like $7.00. Then we went uptown, cause the best hip hop clothes are there and first I stopped to see my cousin. He was not home and we were walking downtown from his building and two cops come around the corner and come right over to us.

"What happened next?" asked Joe, a third year law student in our Criminal Defense Clinic.

Well, the cop says something like--"What are you doing in this neighborhood, are you here to buy drugs, don't you know this is a dangerous place" and stuff like that. And I said, "It is a free country," or something, I know I talked back. So I guess he did not like that. So the two cops shove us up against this chain link fence and start frisking us, but he does not find anything on me. So he says, "Do you have a knife on you?" and I say "Yes, but it is under four inches and I can have that." So he says "Give it to me slowly," and I did. And he says, "You are under arrest." (1)

INTRODUCTION

Mr. Henrique Ramos sat in a little metal booth, on the opposite side of a metal grill from Joe Raines, Tara Hudson, and me. The three of us were crammed into a space of about twelve square feet in an interview booth behind Arraignment Part I at New York County Criminal Court. It was mid-September. This morning the air conditioning was working and the air was cold. Even with the dim lights, peeling paint, claustrophobic space, and noise from the twenty or thirty people in the two big cells that took up most of the area behind the courtroom, it was not a particularly noxious morning back in the pens.

Mr. Ramos had been arrested for possession of a gravity knife at about 2:30 p.m. on a Tuesday afternoon. Joe, Tara, and I met him at about 8:30 a.m. on Wednesday morning. Joe and Tara were students in our Criminal Defense Clinic and I was their Supervising Attorney. Joe had already reviewed the complaint with Mr. Ramos, taken his personal history, and advised him that he would very likely be released on his own recognizance once he appeared before the judge.

"And then what happened?", asked Joe, continuing the interview. Well, after they check out my friend and don't find anything on him, they tell him to get out of that area and stay out. They already had me cuffed. So they take me to the police station and the cop is telling me, I know you are a drug dealer. And he is sitting there holding my phone, and it rings and he answers it. He tells me he is going to get one of my drug calls and then he'll have me on a distribution charge, and I tell him he isn't going to get anything. So after an hour or so, he tells me I'm just lucky he can't make a drug case today, but he'll be watching me and I'm going to have a record. He says I shouldn't carry a gravity knife and I should stay out of that neighborhood--it's dangerous. And he took my $375.00 shopping money and I want it back. "Yes, I can understand that. You have already given me quite a lot to think about," commented Joe. Indeed, Mr. Ramos had given us quite a lot to think about that morning. As the case worked out, however, most of the questions I had were never answered. Mr. Ramos ended his case on his third appearance in court, pleading guilty to disorderly conduct, (2) a non criminal resolution under New York State law. Although the case posed interesting legal and factual issues well worthy of litigation, American lower criminal courts have long been structurally incapable of adjudicating legal and factual disputes in the vast majority of the cases that come before them. (3) The story I tell in this essay illustrates how America's reliance on overcriminalization, prosecutorial discretion, and procedural guarantees makes it very difficult for our lower criminal courts to reliably sort minor cases according to their merits.

These are not new problems for the courts that adjudicate minor offenses. Although Mr. Ramos was arrested and prosecuted in New York City in the very first years of the twenty-first century, there is a timelessness about the lower criminal court in America, the institution that accounts for ninety percent of all criminal cases in the United States. (4) For more than 120 years it has been characterized by, and consistently criticized for, its rapid pace, relative indifference to law, inability to influence police practices, lenient sanctions, and ripe atmosphere. (5) All of those themes played out in Mr. Ramos's case, in which questionable conduct by both Mr. Ramos and the state was, in the end, essentially glossed over by all involved. This essay argues that if we aspire to improve how we adjudicate minor cases, we must get clear on why it is so difficult to reach the merits of minor cases. Given the endless supply of cases and the low stakes involved in each case, it will always be more attractive to appear very busy rather than to invest the resources adjudication on the merits requires.

But we can do better and we should. These are the courts where the vast bulk of American criminal adjudication takes place. Known by a variety of names, these courts handle all aspects of non-felony offenses and typically process the earliest phases of felony cases. They account for most of Americans' direct exposure to the judicial aspects of the criminal justice system. These courts have been the focus of renewed attention in recent years, as public order policing (6) has dramatically increased the number of low level arrests in many jurisdictions, (7) and the problem solving movement has led to the establishment of specialized lower courts in many jurisdictions. (8) Yet the high volume, rapid-fire, misdemeanor court persists.

The timelessness of the lower criminal court, the intractability of its essentially lawless, rapid processing of cases is deeply rooted in American criminal justice. It flows all too readily from the central organizing principles of our system, overcriminalization, (9) and executive discretion, (10)

There is an endless supply of defendants to keep the lower courts busy. The executive can, and often will, bring many cases in, but choose to fully litigate very few of them. (11) For the prosecutors and the police, most of the benefits of the enforcement of minor crimes seemingly come from initiating the contact with the criminal justice system. For differing reasons, defendants, prosecutors and judges have little incentive to reach the merits of these cases and sort them according to their real deserts. Not enough is at stake to make it worthwhile. This essay argues that there is no effective judicial check on executive authority in the misdemeanor cases which account for ninety percent of the citizen police encounters that result in a constitutionally cognizable seizure of the person and deprivation of liberty.

The structural features which make lower courts process, rather than adjudicate, cases have received significant policy and doctrinal encouragement in recent years. As legislators have passed even more criminal statutes, legal doctrine has stepped away from more aggressive limiting of police conduct in criminal cases, and the vigorous enforcement of minor crimes has become the received wisdom of crime control. Overcriminalization and discretion, however, are the broad boundaries within which many different criminal justice vogues have flourished. (12) Indeed, the real genius behind very important shift in law enforcement that has come to be known as public order policing. (13) It recognizes that a major shift to much more active law enforcement could be accomplished with almost no change in the law and would work with and be re-enforced by the real world unintended consequences of the adjudicative mechanisms intended, by another era, to reduce police activism. (14)

Public order policing is a wonderful fit with overcriminalization, executive discretion and rapid fire adjudication in our lower courts. I argue that it is too good a fit. In a system built on checks and balances, reliant on inefficiencies to limit the reach of official power, (15) and police discretion to enforce and sanction minor transgressions, has become too great.

The judicial authority of the lower criminal court is a very weak constraint on how police interact with citizens accused of minor crimes for two interrelated reasons. First, the law gives police officers very broad scope to arrest citizens for minor offenses. On any given day, if you drive a car, walk, or stand on a sidewalk or public road, you likely subject yourself to the legal possibility of arrest and twenty-four hours of detention without much likelihood of substantial legal remedy. Our regime of overcriminalization and executive discretion vests a degree of authority in our police and prosecutors that many will find surprising. Second, the system imposes such significant costs on citizens who seek to vindicate their rights in minor cases that many violations are never pursued. Most who are arrested for a minor traffic offense or loitering, jaywalking or other minor charges are angry at first, but end up happy to just end the whole thing and move on. If the defendants and their lawyers feel that way, the prosecutors will not insist that they pursue the matter. The court, however, might take a different stance, but as is discussed later, they do not.

American criminal justice is founded on overcriminalization and discretion. (16) Our legislatures have long criminalized much more conduct than can be effectively sanctioned. (17) American police and prosecutors have been granted virtually unreviewable authority (discretion (18)) to allocate (19) investigative and prosecutorial resources. (20) Minor crimes absorb the bulk of our ordinary, local enforcement efforts and there is an endless supply of minor crime which may be pursued. There has been recent and insightful commentary on the explosion of criminal...