Managerial justice and mass misdemeanors.

• Author: Kohler-Hausmann, Issa
• Position: Introduction: Misdemeanors in the Age of Mass Incarceration through III. Misdemeanor Justice in the Era of Mass Misdemeanors, p. 611-653 - Author abstract

INTRODUCTION: MISDEMEANORS IN THE AGE OF MASS INCARCERATION I. THE ADJUDICATIVE AND MANAGERIAL MODELS II. THE RISE OF MASS MISDEMEANORS III. MISDEMEANOR JUSTICE IN THE ERA OF MASS MISDEMEANORS A. Disposition Trends B. The Managerial Uses of Dispositions: Marking and Classification 1. Dismissal 2. Conviction IV. A QUALITATIVE ACCOUNT OF MANAGERIAL MISDEMEANOR JUSTICE: THE DISPOSITION PROCESS A. The Practical Circumstances of Arraignment B. The Uses of Adjournments C. The Additive Imperative: Building upon Criminal Records V. A QUANTITATIVE STORY OF MANAGERIAL MISDEMEANOR JUSTICE: THE IMPORT OF PRIOR MARKS A. Cohort Description and Trajectories 1. Rearrest and conviction of cohorts by individual members 2. Rearrest and conviction of cohorts by arrest events B. Models of Misdemeanor and Felony Conviction VI. POLICY IMPLICATIONS OF THE MANAGERIAL MODEL: WHAT IS TO BE DONE? CONCLUSION INTRODUCTION: MISDEMEANORS IN THE AGE OF MASS INCARCERATION

Mass incarceration has moved into the public and scholarly eye as one of the most troubling and pressing issues in modern America. (1) Yet the unprecedented number of people in prison fails to capture the significant expansion of penal operations in the United States over recent decades. (2) This Article explores another recent expansion of penal operations that has received remarkably little attention: the rise of mass misdemeanors. (3) Since the mid-1990s, police departments across the country have adopted tactics that intentionally increase the volume of citations and arrests for low-level offenses, flooding lower criminal courts with subfelony cases. Misdemeanor justice in the age of mass misdemeanors both upends standard notions of the purposes of criminal procedure and punishment and challenges our understandings about the social role of criminal law. (4)

This Article presents a systematic study of misdemeanor justice in one jurisdiction using extensive original quantitative and qualitative data. The jurisdiction I have chosen--New York City--pioneered the intentional expansion of misdemeanor arrests as part of a new policing strategy. (5)

I organize my analysis of these data to make a point that can be summarized fairly succinctly, even if its clarification and support will require substantial elaboration: misdemeanor justice in New York City has largely abandoned what 1 call the adjudicative model of criminal law administration--concerned with adjudicating guilt and punishment in specific cases--and instead operates under what I call the managerial model--concerned with managing people over time through engagement with the criminal justice system. (6)

Under the adjudicative model, the practical orientation of criminal court actors and their regular operations are largely organized around adjudicating guilt and an appropriate punishment premised on a finding of guilt. The vision of criminal law's social control role in the adjudicative model is to punish for specific bad acts, and the criminal process is deployed to select the right people for punishment by determining if the accused committed the bad act alleged in a particular case. Under the managerial model the practical orientation of criminal court actors and their regular operations are largely organized around the supervision and regulation of the population that flows through misdemeanor courts, often with little attention to questions of guilt in individual cases. The vision of criminal law's social control role in the managerial model is to sort and regulate people over time. The criminal process is deployed to figure out the rule-abiding propensities of people and calibrate formal regulation accordingly.

The adoption of a managerial mode of criminal law administration makes sense of a notable fact about New York City's experiment in mass misdemeanors: as low-level arrests dramatically climbed as part of an intentional law enforcement strategy, the rate of misdemeanor conviction markedly declined. (7) This result is particularly puzzling as the most common depiction of lower criminal courts is that of assembly-line justice: robotically convicting defendants and imposing one-size-fits-all punishments. The data presented here will show that New York City's misdemeanor courts have not mechanically convicted and punished misdemeanor defendants. The solution to this puzzle tells us something crucial about the malleable capacity of courts to serve familiar social functions--in this case the function of social control--in unfamiliar ways. Careful study of a specific criminal law venue exposes how the practical, concrete circumstances of conducting legal work shape the ways that rules and procedures are deployed.

Existing models of criminal law, which have been built up almost entirely around felony adjudication, simply do not fit lower criminal courts. The social imperative to punish and the incentive to litigate diverge dramatically from felony to misdemeanor cases. Lower criminal courts process cases where the alleged crimes do not, by and large, represent an affront to widely held moral sentiments or cry out for the social act of punishment. These courts must process large volumes of these cases with limited judicial resources. The relative cost of invoking due process and formal adversarial procedures is often prohibitively high. What sort of justice is meted out in this setting? And what is the process by which it occurs? How does criminal law function as a mode of social control in this system?

This Article takes a sociological approach to these questions by foregrounding courts as organizations embedded in larger institutions and by analyzing punishment as a social practice. While this Article is dedicated to making sense of punishment practices for subfelony crimes, I submit that this approach is important to the study of criminal law more broadly. William Stuntz once described the content of criminal law not as "rules in the shadow of which litigants must bargain," but rather as "items on a menu from which the prosecutor may order as she wishes." (8) Put differently, legal rules and statutorily authorized punishments offer little guide to the empirical regularities of existing criminal courts and criminal punishment. To understand the activity of criminal courts we must situate them in the concrete material and social contexts in which they operate because these are the factors that shape how criminal justice actors make sense of and use legal rules.

The following analysis of the activity of lower criminal courts is based on data from a mixed-method, two-and-a-half-year research project in New York City. My data include a unique set of quantitative data about misdemeanor arrests and dispositions and extensive qualitative data gathered over two years of fieldwork including ethnographic observation and over fifty interviews. My analysis is also informed by legal research about criminal procedure, criminal records laws, and court administrative practices. Drawing on these data and research, I show that the forms of dismissal and noncriminal dispositions common in New York City's misdemeanor courts do not represent an overburdened judicial system merely opening the pressure valves. Nor do the regular operations of misdemeanor courts represent widespread disregard or contempt for due process values. Rather, their activities represent a fundamentally distinct approach to the administration of criminal law.

Under the adjudicative model, criminal courts' factfinding work is a vital link in securing the social control ends of criminal law. Standing between the proscriptions of substantive criminal law and the hard treatment of punishment, adjudicative courts employ the criminal process to identify the guilty and send them off to some formal punishment where the real social control action unfolds. In contrast, the logic of social control under the managerial model does not depend on selecting the right people for punishment, but rather using various legal and procedural tools to determine over time the type of person the defendant is and to build records on his general rule-abiding propensity. Courts themselves are the sites of social control. Criminal justice actors employ the costs and records of the judicial process to sort and assess large numbers of defendants brought in from quality-of-life policing often without inquiring into guilt or innocence in specific cases, and often without even attempting to secure conviction and formal punishment.

Misdemeanor justice does not constitute a world apart in the criminal law landscape, unique by virtue of the managerial modality. Rather, it presents an especially hospitable environment in which the managerial model can flourish for reasons that I document. Therefore, the study of misdemeanor justice exposes an extreme case of an underappreciated model of criminal law administration that is at odds with textbook formulations, one that is present in other venues but more or less suppressed by countervailing forces.

Part I expands and gives precision to the adjudicative and managerial models of criminal court functioning. I locate these models as opposing ends on a conceptual spectrum of idealized accounts of criminal law administration. In this Part, I also distinguish these models of the functional logic of criminal courts from both an operational model (addressing which criminal court actors have the relative power to determine outcomes) and a normative model (addressing how the criminal process ought to work).

Part II offers an account of the particular social and historical circumstances that gave rise to the era of mass misdemeanors and managerial justice. The era of mass misdemeanors is a product of the revolution in the intensity and form of urban policing that swept the nation starting in the mid-1990s. I highlight some interconnected features of the policing regime introduced in 1994 that have often been examined separately. Additionally, I...