Sidestepping justice? Adjournments in contemplation of dismissal in misdemeanor court.

AuthorWorden, Alissa Pollitz
PositionNew York
  1. INTRODUCTION

    In the public mind, justice is served when defendants' rights are observed, when the legal process arrives at more, rather than less, accurate verdicts, and when the consequences of illegal behavior correspond to society's sense of fair sanctions. The goodness of fit between these ideals and reality is on public display in jury trials, sentencing reports, and appellate proceedings. But a great deal of adjudication--misdemeanor case processing--happens below this public radar, and is seldom subject to empirical research. Little is known about how prosecutors and judges handle cases in lower courts, where dispositions may involve options such as diversion and conditional dismissal that blur the legal lines around judgments of guilt. This article explores dispositions of partner violence cases in three city courts in upstate New York, focusing on one such procedure--adjournment in contemplation of dismissal--that simultaneously treats defendants as de facto guilty (by imposing a waiting period of "good behavior" before final disposition), in exchange for a contingent promise to withhold conviction and permanently seal public records of the charges or resolution. (1)

    In principle, these adaptations of the pretrial process are justifiable when the consequences of a conviction and resulting sentence are clearly outweighed by the negative effects of such decisions for defendants, victims, and the community. Often the criterion or rationale for these dispositions is "the interest of justice." (2) This sort of diversion is both practical and sensible in many individual cases. For example, first-time offenders who, having violated the law, nonetheless have produced no harm and who exhibit remorse might appropriately be given an opportunity to avoid the stigma of conviction. However, when these dispositions become normative in any particular type of case, we might reasonably investigate the factors that are associated with these decisions, and consider their implications not only for defendants but for victims and the larger community as well.

    In New York courts, adjournment in contemplation of dismissal (ACD) has long been a common disposition in domestic violence charges. (3) Historically these cases, which often involve physical abuse, threats, and property damage, have been marginalized by the legal system, often trivialized as "disputes," "mutual combat," or "family problems" rather than criminal acts. (4) Beginning in the 1980s, reformers argued for police and court practices that focused on defendant behavior and culpability rather than relationship dynamics. (5) By the mid-1990s, like many other states, New York had enacted a series of reforms aimed at increased enforcement and prosecution, and greater responsiveness to the specific needs and concerns of partner violence victims. (6) The goal of these reforms included increasing both the accountability of perpetrators and the accountability of the criminal justice system to victims and potential victims. (7)

    Yet very little is known about the circumstances that result in these dispositions, which paradoxically imply guilt in the courtroom but sidestep a conviction, punishment, and public record of arrest. We suggest that routine use of ACD might constitute a misstep of justice if this outcome (1) is associated with offender or case characteristics that are legally irrelevant to a verdict, or (2) is not associated with legally relevant factors (such as evidence and blameworthiness) that ought to distinguish between convictions on the merits and acquittals or dismissals. We also suggest that ACDs might be judged missteps of justice if they appear to be little more than reifications of earlier legal decisions (such as bail decisions and appointment of counsel).

  2. PROSECUTION OF DOMESTIC VIOLENCE CASES

    Research on the prosecution and adjudication of domestic violence cases is uneven, sometimes contradictory, and ultimately inconclusive. Early researchers reasonably focused their efforts on the arrest decision, inasmuch as advocates and reformers suspected that police reluctance to process domestic violence claims was the primary roadblock to increasing offender accountability. (8) In many jurisdictions, police reluctance was countered with mandatory arrest policies requiring an arrest anytime police had probable cause to believe that a domestic violence incident had occurred. (9) Mandatory arrest policies may be a first step in holding offenders accountable, and a good deal of research has examined the effectiveness of such practices. (10) But we know much less about what happens in these cases in the courtroom, and this is especially true where officials make common use of dispositions that leave little or no trace of the event. (11)

    Numerous challenges account for this gap in the research on domestic violence prosecution and adjudication. First is the issue of data collection. Most cases involving partner violence are filed as misdemeanors and are disposed in lower courts, typically in relatively abbreviated proceedings that produce limited court records, (12) Perhaps as a result, many early studies of court decision-making relied not on records of case dispositions, but on surveys of court actors. (13) Furthermore, many studies have been based on a single court. (14) Finally, the conclusions of the few studies that have examined case outcomes in domestic violence prosecution are contradictory, inconclusive, and sometimes surprising. Contradictory or disparate findings may be due to factors such as differing courthouse cultures, (15) variation in local agencies' criminal justice policies, (16) and inconsistencies among states' substantive and procedural laws. (17)

    This study was undertaken in the State of New York. In New York, misdemeanor cases may be resolved through several mechanisms. These include convictions and acquittals, but also include dispositions that attach neither guilt nor innocence. (18) New York allows for conditional discharge and adjournment in contemplation of dismissal. (19) Some of these dispositions may have conditions attached, such as avoiding re-arrest, protective orders, or treatment programs. (20) It would appear that a substantial number of cases are resolved through these sorts of mechanisms. In New York and other states, these types of dispositions are common. (21)

    The variability of case dispositions is evident in data that indicate that rates of dismissals, guilty pleas, and intermediate dispositions vary. Most studies report dismissal rates (which might result from both prosecutors' and judges' judgments) that range from 5% to 34%. (22) Guilty verdicts (which overwhelmingly result from guilty pleas) appear to be a fairly seldom occurrence in some courts, but the norm in others. (23) This leaves the "intermediate" dispositions that may or may not include probationary conditions, the potential for a conviction should the offender violate these conditions, adjournment of cases without conditions or penalty if re-arrested, and assorted other dispositions. It is these "intermediate" dispositions that are of interest here.

    States have various mechanisms for this middle ground of adjudication, most of which exist as a sort of compromise between a finding of guilt and a "get out of jail free" card. Virginia, for example, allows judges to "take cases under advisement" and also to "take cases under advisement with sufficient evidence to convict." (24) Other states allow for deferred adjudication, (25) and diversion. (26) One state, Massachusetts, allows for a "continuance without a finding" (27) that requires the offender take some responsibility for the offense in the form of an admission in court, but allows for dismissal of the case if the defendant abides by various rules during a probationary period. (28) On the other hand, a violation of conditions by the defendant may result in a conviction. (29)

    This "intermediate" disposition takes other forms as well. Consider, for example, another jurisdiction, Tennessee, that allows for diversion, (30) a term typically synonymous with dismissal. In Tennessee, diversion is described as the same as a guilty plea, yet with the record expunged after one year, provided the defendant abides by the court-imposed condition. (31) In New York, no such mechanism exists. Instead, as we focus here, the adjournment in contemplation of dismissal neither requires any admission of wrongdoing, nor does it allow for a conviction should the offender be re-arrested during the period prior to dismissal. (32) In an area of the law such as domestic violence, given that reform has sought to increase accountability for domestic violence, this question must be considered: Whether an intermediate disposition, especially one that does not include any admission of wrongdoing, is a departure from justice.

    Perhaps if the weaker and less serious cases result in these intermediate dispositions, it would indeed be a just result. Whatever the intermediate disposition, one would certainly believe that the stronger and more serious cases would be more likely to result in a conviction. As a result, the weaker and less serious cases would be riper for an "intermediate disposition." The difficult question, therefore, is: What are the predictive factors in the disposition in these domestic violence cases? If this question could be answered, perhaps we would be closer to determining whether intermediate dispositions sidestep justice and the goal of reform in domestic violence.

    Unfortunately, this is the gaping hole in domestic violence research. Few studies look at the factors that are predictive of outcomes and those that do provide inconsistency and inconclusiveness. Although previous researchers have not been able to measure and collect data on some of these variables, we can observe some patterns. Researchers have examined whether case files often include information about physical violence, injuries...

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