Managerial Justice

This chapter starts by reviewing what we might expect to happen in response to a flood of cases. Given the received wisdom that lower criminal courts deliver “assembly-line justice,” it would be logical to assume that the increase of misdemeanor cases would result in lots of convictions and jail sentences. The chapter presents descriptive data that show what happened instead: a decline in the rate of criminal conviction and an increase in the rate of dismissal. The chapter proposes that a good way to make sense of the disposition trends of the past twenty-five years is to understand that misdemeanor justice in New York City has largely abandoned the adjudicative model of criminal law administration. Instead, it hews more closely to the “managerial model,” where the criminal process is deployed to figure out the rule-abiding propensities of people and to calibrate formal regulation accordingly.

Working in Misdemeanorland

This chapter explores why criminal court actors turn to using the tools of criminal procedure and criminal law to sort, regulate, test, and manage the populations that flow through misdemeanorland. It looks at why this is done instead of adjudicating individual guilt and innocence. Drawing on organizational and field theory, the chapter examines those features of misdemeanor justice that allow for the flourishing of a managerial as opposed to adjudicative modality of criminal law administration. The analytic of the field is helpful because it allows us to understand how a pattern of activity and logic of action emerge not just from the formal goals of organizations, but from the structure of constraints actors face in a particular setting and from the precise ways individual and collective actors interact in their daily affairs. The disposition patterns and reliance on marking, procedural hassle, and performance as penal techniques can be understood as a result of creative problem solving in the face of the specific dilemmas and practical circumstances of doing legal work in misdemeanorland in the era of Broken Windows policing.

The Rise of Mass Misdemeanors

This chapter briefly recounts the origins of the policing experiment of the early 1990s that flew under the Broken Windows banner. It also explores how that experiment has become an institutionalized feature of New York City's law enforcement since then. The history is tailored to highlight those changes in enforcement that most affected the flow and composition of cases into the lower criminal courts. It also portrays how the justifications for this policing model demanded bureaucratic practices that in turn shaped how these low-level cases came to be processed by criminal justice actors. Specifically, the chapter emphasizes the new record-keeping and record-sharing practices that the police and courts innovated in this period in an effort to mark suspected persons for later encounters and to check up on prior records to identify and target persistent or serious offenders.

Introduction

This introductory chapter gives a brief overview of “misdemeanorland” and how it is studied. “Misdemeanorland” is a colloquialism used by people who work in the courts that receive the large volume of cases generated by New York City's signature policing tactics. The term designates a jurisdictional and physical space where these cases are processed. Within the context of the city's Broken Window enforcement, the expression “misdemeanorland” also signifies the widely shared notion that there is something unique about the operations of justice in the subfelony world. Many social science and media accounts of the U.S. criminal justice system tend to address either the back or front end of the system. In the age of mass incarceration, much public and scholarly focus has been directed at the back end, at what many of us assume to be the end point of most arrests: prison or jail. But between police and jails stands an institution assigned the role of deciding which people identified by police will end up in jail, prison, or elsewhere: the criminal court.

Conclusion

This concluding chapter revisits the various types of insights that the study of justice in misdemeanorland offers to our sociological understanding about legal organizations. It also addresses how meso- and macro-level trends are produced from micro-level conditions. The chapter starts the discussion from the perspective of a lawyer and ends with that of a citizen. That is, the chapter first highlights what this study can tell us about the possibilities and limitations of legal reform and transition to emphasizing what this study exposes about the way most social problems are addressed in the United States. It concludes by arguing that the study of mass misdemeanors—like that of mass incarceration—ultimately points out larger political questions about what role we, as a democratic society, will countenance for criminal justice in establishing social order.

Performance

This chapter analyzes the technique of performance. “Performance” refers to a set of activities the defendant is instructed by the court or prosecution to undertake and later to present as a successful achievement demonstrating responsibility and governability. It explores a wide range of such tasks—from in-patient drug treatment to community service—and shows how these duties are assigned and evaluated as performances revealing the defendant's character or capacity to be directed by official rules. The unifying logic behind disparate performance activities is evaluating how a defendant has executed the act. The technique of performance seeks normalization but does not involve constant engagement and supervision: it entails a command and a sanction-backed compliance check.

Procedural Hassle

This chapter is dedicated to procedural hassle—the degradation of arrest and police custody, the stress and frequency of court appearances, and the opportunity costs incurred in order to make court appearances or to comply with court orders. The technique of procedural hassle is distinct from marking. In this case, it is not about tracing a potentially risky defendant in the outside world but rather about delaying, engaging, and compelling the defendant to conform to the institutional and organizational demands of the court and court actors. The chapter shows that these experiences are something more than a set of inconvenient burdens that dissuade defendants from pushing adjudication or even a collection of informal means by which judges and prosecutors punish defendants. They can be also a set of active, productive tools in the ongoing relationship of social control that lower courts have with defendant populations.

Marking

This chapter discusses the technique of marking—the generation, maintenance, and regular use of official records for critical decisions about a person's criminal justice contacts and status determinations about the individual. In the subfelony world, marking is a dynamic practice that sorts and classifies the people moving through misdemeanorland, often into provisional or conditional statuses. Marks document a range of behaviors and accomplishments. These marks are consulted by court actors to determine what level of social control response is warranted and what other sorts of testing or punishments ought to be imposed if a person cycles back through the system. Marking—independent of it signaling the state's authority to lawfully impose a formal punishment—is itself a penal technique, even when the mark is temporary and its accessibility limited. Here, the chapter explains precisely how marks are created and stored in misdemeanorland and discusses how the practices there differ from those in felonyland. It also presents quantitative evidence about the import of marks in misdemeanor case processing.