The High Stakes of Low-Level Criminal Justice. (2024)

Misdemeanorland: Criminal Courts and Social Control in an Age ofBroken Windows Policing

BY ISSA KOHLER-HAUSMANN

PRINCETON UNIVERSITY PRESS, 20l8

AUTHOR. Professor of Law, University of California, Irvine Schoolof Law. Special thanks to Guy-Uriel Charles, Sharon Dolovich, MonaLynch, and Doug Nejaime. My thanks also to the editors of the Yale LawJournal for their excellent work.

BOOK REVIEW CONTENTS

INTRODUCTION 16501. THE MISDEMEANOR CHALLENGE IN NATIONAL PERSPECTIVE: 1659 DEVALUING DUE PROCESS FOR THE DISADVANTAGEDII. NEW YORK CITY 1665 A. The Legal System's Response to Broken-Windows Policing 1665 B. Mapping Managerialism: Marking, Procedural Hassle, and 1672 PerformanceIII. THE PUNITIVE SPECTRUM: FROM MANAGERIALISM TO CONVENTIONAL 1677 PUNISHMENTIV. AN ADVERSARIAL TAKE ON THE MANAGERIAL COMPROMISE 1682 A. Gideon in Misdemeanor Processing 1683 B. Prosecutorial Complicity in Broken-Windows Policing 1686 C. The New York Adversarial System at Work 1689V. MISDEMEANOR JUSTICE? 1692 A. The Equitable Importance of the Rule of Law 1694 B. Managerial Injustices 1697CONCLUSION: THE LENIENCY FALLACY 1702

INTRODUCTION

Over the past few years, misdemeanor policing and low-level courtshave increasingly become the subject of legal scrutiny, social unrest,and racial distrust. Across the country, civil rights advocates aresuing municipal courts for operating as barely disguised regressive taxoperations, in a system that the New York Times has labeled"cash-register justice." (1) Bail reform is sweeping thenation in large part because cash bail in low-level cases isincreasingly understood as a form of unconstitutional discriminationagainst the poor. The anger of the Black Lives Matter movement isheavily fueled by the experience of order-maintenance policing--stopsand arrests for minor offenses such as loitering, trespassing, anddisorderly conduct. (2) Michael Brown, after all, was originally stoppedmerely for jaywalking in the streets of Ferguson before police officerDarren Wilson shot and killed him. (3) And in 2015, theRepublican-controlled Senate Judiciary Committee held a hearing entitled"Protecting the Constitutional Right to Counsel for IndigentsCharged with Misdemeanors," in which committee chair Senator ChuckGrassley lamented that

many states are not providing counsel as the Constitution requires. Itis a widespread problem. In reality, the Supreme Court's SixthAmendment decisions regarding misdemeanor defendants are violatedthousands of times every day. No Supreme Court decisions in our historyhave been violated so widely, so frequently, and for so long. (4)

The stakes of this debate could not be higher. Misdemeanorsrepresent eighty percent of state criminal dockets. (s) Approximatelythirteen million misdemeanor cases are filed nationally every year,compared to three or four million felony cases. (6) The misdemeanorprocess is the governance vehicle through which the U.S. penal systemmost frequently exercises its coercive police and punitive powers,usually over the most economically and racially vulnerable subjects.This is how the criminal system engages with most people, most of thetime. Yet it does so in ways that are profoundly attenuated from thebasic procedural requirements and substantive justifications of criminallaw. Light on due process, heavy on informal controls, and relativelyuninterested in evidence or culpability, the petty-offense process doesthe work of criminal justice in violation of key rules governing theexercise of state criminal authority.

There are numerous disturbing features of this phenomenon--itcriminalizes the poor, convicts the innocent, and often violates theConstitution. But the foundational questions run deeper. The misdemeanorprocess sits on a democratic fault line of the criminal system as athinly regulated exercise of police power that persistently resists manybasic legitimating constraints of state penal authority andconstitutional democracy. It is aggressively stratifying, aimeddisproportionately at the poor and people of color while contributingheavily to wealth-based and racial inequality. Enormous, decentralized,and opaque, the misdemeanor process is at once highly influential andlacking in democratic accountability.

For decades, the legal academy paid scant attention to this vastarena of law, policy, and practice. But that has recently changed. In2018, two full-length books on the subject were released, (7) the firstsince Malcolm Feeley published his seminal work, The Process Is thePunishment in 1979. (8) Also in 2018, Boston University held a two-daysymposium (9) that generated nine articles on "the MisdemeanorMachinery," (10) while at least four additional law review articlesexplored important aspects of the petty-offense process. (11) The yearbefore, in 2017, scholars published over fifteen more pieces. (12)Subjects ranged from cash bail to debtor's prison to wrongfulconvictions.

This cornucopia of new scholarship represents the initiation of along overdue project: a rigorous, academy-wide evaluation of the largestcomponent of the modern U.S. criminal system. (13) It is a componentthat has been intellectually overshadowed by the excesses of its felonycounterpart; the legal academy has spent decades unpacking thetheoretical challenges and programmatic weaknesses of massincarceration. Finally, misdemeanors are getting their due.

Issa Kohler-Hausmann makes an important contribution to thisburgeoning discourse in her book Misdemeanorland: Criminal Courts andSocial Control in an Age of Broken Windows Policing. The book is a deepsociological dive into the workings of New York City's lower courtsystem, which processes hundreds of thousands of misdemeanor cases everyyear. Kohler-Hausmann uses the advent of broken-windows policing in NewYork in the 1990s and the explosion of minor arrests that it generatedto explore how that court system responded to the massive influx ofcases. From 1980 to 2010, annual misdemeanor arrests in New York nearlyquadrupled from 65,000 to 251,000. (14) Through detailed analysis of theroutine charging, processing, and sentencing decisions made in New Yorkcourts between approximately 2000 and 2015, Kohler-Hausmann offers anuanced view of misdemeanor punishment, finding that it is just asconcerned with imposing criminal record "marks" and informalsocial controls as it is aimed at producing legal convictions and formalsentences. She calls this phenomenon "managerial justice," inwhich prosecutors and judges

seek social control by sorting and testing defendants into the futureby building records on their law enforcement contacts, evaluating theirrule-abiding propensities through measured compliance with a series ofprocedural requirements, and gradually ratcheting up the punitiveresponse with each successive encounter or failure to live up to thecourt's demands. (15)

Kohler-Hausmann contrasts managerial justice with what she termsthe "adjudicative model," a more conventionally legalisticframework "concerned with deciding guilt and punishment in specificcases." (16) Unlike the adjudicative model, managerial justice isnot particularly interested in evidence or guilt, but rather inexercising social control through "marking," "proceduralhassle," and "performance." (17) As described by thebook, these three practices are the primary tools through which New Yorklegal officials track, evaluate, and control the people who pass through"misdemeanorland." These practices involve marking andtracking defendants by creating detailed criminal records and imposingdemeaning experiences and onerous performances on them that the systemthen uses to evaluate defendants' general rule-abiding character.Managerial justice still punishes, but it often postpones or forgoesincarceration and conviction in exchange for these lighter, less formalintrusions. (18) At bottom, managerial justice is based on a"presumption of need for social control over the people who arebrought from" disorderly communities into the criminal system, (19)who in turn are largely poor people of color. (20) The book'sprimary claim is that managerial justice, with its presumptive need forsocial control and its lighter punitive touch, has largely displaced theadjudicative model in New York City. (21)

The book builds upon a number of intellectual traditions. It is awelcome addition to the collateral-consequences literature, which haslong noted that convictions and formal penalties are not the onlypunitive experience--and for misdemeanors, not even the central punitiveexperience--visited upon people who pass through the criminal process.As various scholars have explained, "misdemeanor prosecutions andconvictions ha[ve] negative effects that reach far beyond the confinesof the criminal courthouse" and "non-criminal sanctions...often overwhelm any sentence that the trial judge imposes." (22)Negative effects may include the loss of immigration status, housing,public benefits, driver's licenses, credit, and social status. (23)The punitive experience can begin as early as the initial arrest, whichserves not only as an exercise of criminal police power but as "aregulatory tool--a means of monitoring, ordering, and trackingindividuals. The aim of this type of [arrest-based] regulation can bequite distinct from certain criminal law concerns--adjudicating guilt orinnocence, maintaining law and order, deterring crime, and meting outpunishment." (24) Misdemeanorland's thick descriptions of themechanics of social control advance this burgeoning misdemeanorliterature and deepen our understanding of the many dimensions of thelow-level criminal justice encounter.

Misdemeanorland also dovetails with scholarship regarding thecriminalizing control exerted by poverty-oriented public institutionssuch as welfare offices, housing courts, and hospital emergencyrooms--the so-called "criminalization of poverty." (25)Frances Fox Piven and Richard Cloward observed long ago that a centralfunction of public welfare is the "regulation of marginal laborand... the maintenance of civil order." (26) Nearly forty yearslater, Loic Wacquant argued that this welfarist social-control functionhas been largely taken over by the criminal system, representing"the gradual replacement of a (semi-) welfare state by a police andpenal state for which the criminalization of marginality and thepunitive containment of dispossessed categories serve as social policyat the lower end of the class and ethnic order." (27) This takeoveris exemplified by the criminalization of welfare, (28) health care, andhomelessness. In his study of emergency-room practices in large urbanhospitals, for example, Armando Lara-Millan describes how nursesallocate medical resources based on patients' perceivedcriminality, and concludes "that the urban poor's access tohealth care is mediated... by incarceration, policing, and crime controllanguage." (29) On Los Angeles's enormous Skid Row, policeroute the homeless into shelters under the threat of arrest. (30) AsMisdemeanorland illustrates in detail, the petty-offense process is anactive member of this interrelated family of controlling institutions.

Perhaps most obviously, Misdemeanorland is part of a long traditionin sociology--Kohler-Hausmann is a sociologist--that understands lowercourts primarily as institutions of social rather than legal control. In1956, Caleb Foote described the vagrancy courts of Philadelphia asdevoted to poverty management:

Philadelphia magistrates... viewed their function as a deterrent one tobanish "bums" from Philadelphia and keep them out ("After this you staywhere you belong"), or as a form of civic sanitation ("I'll clean upthis district if I have to stay here until 5 o'clock every afternoon"),or as control of suspicious persons ("There have been a lot ofrobberies around here. I'm going to have you investigated--threemonths"), or as humanitarian ("I'm saving his life by sending him wherehe can't booze"). (31)

Twenty years later, Malcolm Feeley wrote that "criminal courtseverywhere are populated by the poor and the disadvantaged and theproblems that bring them into contact with the criminal courts do notvary radically. Indeed, the courts are one of society's primaryinstitutions for managing such people and their continuingproblems." (32) In 1985, John Irwin described the purpose ofjail--a core misdemeanor institution--as "managing the underclassin American society." (33) "[J]ail was invented," hewrote, "and continues to be operated, in order to managesociety's rabble." (34) Misdemeanorland offers a rich,empirically sophisticated, updated version of these analyses, repletewith multiyear cohort comparisons and aimed at one of the largestexperiments in misdemeanor policing and processing in U.S. history.

This Review summarizes, contextualizes, and extends some of themany contributions of Misdemeanorland in light of the broadinstitutional and democratic challenges that petty-offense processingposes to the U.S. criminal justice enterprise writ large. Part I offersa national perspective by providing a brief overview of misdemeanorprocessing as practiced in thousands of jurisdictions around thecountry. It zeroes in on two key systemic features--the erosion of legalnorms and the stratifying tendency to target poor people of color--andargues that these two features are intimately linked. Devaluing dueprocess is one of the primary mechanisms through which the misdemeanorprocess creates and exacerbates social disadvantage.

Part II then summarizes the main contribution of Misdemeanorland,its detailed and provocative picture of New York City practices, andunpacks the book's description and theory of managerial justice. Inparticular, it highlights the book's nuanced depictions of themanagerial mechanisms of social control and the various ways in whichthey advance our understandings of the misdemeanor-punishmentphenomenon.

The Review then builds on the book's offerings in a fewdifferent directions. First, in Part III, it unpacks the persistence inNew York of conventional punishments like incarceration and convictionin order to consider how managerialism sits along the broader spectrumof misdemeanor punitive practices. Although New York is atypical in manyways, (35) analyzing its distinctive features opens up a potentialcomparative conversation about how other U.S. jurisdictions deploy theirown mix of managerial and conventional punishments.

Part IV excavates the transformative role played by defense counselin New York. Misdemeanorland argues that New York has largely abandonedthe adjudication of guilt and innocence, but the book also describes thepersistently adversarial quality of misdemeanor processing in ways thatcomplicate that story. The adversarial process has a deep relationshipto American adjudicative norms, and New York defense attorneys oftenbehave like classic adjudicative actors--engaging in zealousrepresentation, fighting over facts, and litigating to the extent thesystem permits--with visible impact on case outcomes. At the same time,prosecutors strongly resist dismissing cases, in effect validating thepolicing assumptions that generated those cases in the first place. Thisadversarial clash generates managerial compromises. Buried inMisdemeanorland is thus a potentially more adjudicative narrative abouthow New York public defenders structurally counteract punitiveprosecutorial defaults. It is a narrative with implications for theentire U.S. misdemeanor system, in which the Sixth Amendment right tocounsel is persistently underenforced in ways that account for some ofits punitiveness.

Lastly, in Part V, the Review returns to the linkages between dueprocess and equality norms and articulates more thoroughly the normativedamage done to principles of race and class equality when misdemeanorsystems jettison commitments to evidence, questions of actual guilt, dueprocess, and other rule-of-law values. Although Misdemeanorlandcriticizes the inegalitarian class and racial dynamics of the New Yorkmisdemeanor system, it does not explicitly resolve the normativequestion of how deeply managerial justice is to blame. Part V considersthe book's various critical descriptions of managerialism andconcludes that Misdemeanorland is best read as a demonstration that thedual managerial turn away from criminal guilt and toward social controlis actively classist and racist.

Misdemeanors sit in the shadow of mass incarceration and as aresult are often mistakenly assumed to be lenient. Indeed, the excessesof mass incarceration have numbed us to the special brand ofdehumanization that characterizes much misdemeanor processing. ButMisdemeanorland implicitly destabilizes the leniency fallacy: the bookshows how New York's managerial approach remains disrespectful,burdensome, and punitive in its own ways. More broadly, the story of NewYork's massive expansion of policing and prosecution under theaegis of broken windows is a cautionary tale about normative baselines.It reminds us to be skeptical whenever the state intentionally extendsits criminalizing reach over many more individuals and then frames itstreatment of those new subjects as "lenient" because it couldhave punished them more harshly. Such insights can help us appreciatemore fully the punitive qualities of the entire U.S. misdemeanorbehemoth.

I. THE MISDEMEANOR CHALLENGE IN NATIONAL PERSPECTIVE: DEVALUING DUEPROCESS FOR THE DISADVANTAGED

Because the U.S. misdemeanor landscape is enormous, diverse, andoften opaque, no single description can do it full justice. There arethousands of low-level courts across the country--including districtcourts, municipal courts, magistrate courts, summary courts, justicecourts, and mayor's courts. Each state handles them in its ownfashion. Moreover, states vary widely in how much data they collect andpublicize about their misdemeanor dockets, so national data is uneven inquality and availability. Some states, like New York, have unifiedsystems in which all low-level courts report to the centralAdministrative Office of the Court (AOC), but at least ten states do notand therefore do not centrally track misdemeanor cases and convictions.(36) For example, in 2015 when I asked Maine's AOC for a breakdownof its misdemeanor caseload, the office told me that its computer systemwas too outdated to perform that kind of data analysis. (37) Nationally,about half of all state-court prosecutors report case resolutions tostatewide criminal-record repositories, and only half of thoseprosecutors report misdemeanor dispositions. (38) Hundreds of municipalcourts provide no public data on the thousands of cases and convictionsthat they process every year.

These low-level courts perform all sorts of legal and socialcontrol work. They assess guilt and impose criminal convictions. Theymark, track, evaluate, and punish. Some enforce spatial boundaries ofsegregation and gentrification, punishing people of color, drug addicts,or the homeless for entering areas in which businesses or residents donot want them. (40) A subset of community, or "specialty,"courts has adopted strong welfarist commitments, providing drugtreatment, job training, and other rehabilitative benefits to discretehigh-need populations such as those with substance-abuse disorders,veterans, and sex workers. (41)

Many courts are also raising money. The U.S. Department ofJustice's 2015 investigation of the Ferguson Police Departmentexposed this revenue-generating aspect of the system, describing acriminal process in which "many officers appear to see someresidents, especially those who live in Ferguson's predominantlyAfrican American neighborhoods, less as constituents to be protectedthan as potential offenders and sources of revenue." (42) Sherwood,Arkansas has a once-a-week court session devoted to bounced-check cases.The court raises so much money in fines and fees for the city that thecourthouse staff nicknamed it "Million Dollar Thursday." (43)By contrast, some municipal courts provide a relatively small share oflocal budgets. (44)

Notwithstanding this diversity, the national misdemeanor landscapeexhibits two persistent, core characteristics from which its deepestnormative challenges flow: its pervasive disregard for basic criminallaw and procedural protections and its strong inegalitarian tendenciestoward criminalizing and punishing the poor and people of color. (45)Lower courts have long been known for their speed, informality, andinattention to due process and evidence. In 1979, Feeley described the"casualness and confusion" of New Haven's lower court,where half of all defendants had no lawyer and "[a]rrestees werearraigned in groups and informed of their rights en masse .... While afew cases took up as much as a minute or two of the court's time...the overwhelming majority of cases took just a few seconds." (46)Over thirty years later, a report entitled Three Minute Justice: Hasteand Waste in Florida's Misdemeanor Courts described the same speedyphenomenon: most proceedings lasted less than three minutes, and nearlyseventy percent of defendants, two-thirds of whom did not have lawyers,pled guilty immediately at arraignment. (47) A 2009 national reportuncovered comparable practices all over the country. (48) Defendants whocannot afford bail, who have overworked counsel, or who have no counselat all are all under enormous pressure to plead guilty right away.Prosecutors often withdraw favorable plea offers if they are notaccepted immediately. Prosecutors, public defenders, and judges arethemselves under pressure to clear large dockets, and a premium isplaced on speed.

To be sure, not all low-level courts are so rushed and informal.Some courts--for example, some nonimmigration federal misdemeanordockets--look much like felony courts, with lawyers, hearings, trials,and appeals. (49) But more often, misdemeanor courts are known for theirsize and lack of formal legal constraints. As the Supreme Courtacknowledged in 1972, "[T]he volume of misdemeanor cases, fargreater in number than felony prosecutions, may create an obsession forspeedy dispositions, regardless of the fairness of the result."(50) At the extreme end of the spectrum, legal expertise may simply beabsent. In some courts, there are no prosecutors: police handle theirown cases from beginning to end, acting as prosecutor, witness, andnegotiator. (51) In some courts, the judges are not lawyers. (52)Because so many low-level courts underenforce the right to counsel,sometimes there are no attorneys in these courtrooms at all. (53)

This speedy, informal misdemeanor culture often openly disregardslegal rules. For example, judges have been known to discipline defenseattorneys who attempt to file motions or go to trial. (54) Eve BrensikePrimus, a former public defender, relates how a misdemeanor judge onceinvented an imaginary rule of evidence to help the prosecution. When sheobjected, he threatened to hold her in contempt. (35) In Texas, manyjudges incorrectly maintained that they did not have to assessmisdemeanor defendants' ability to pay before incarcerating themover unpaid fines, even though Texas law expressly states that theymust. (56) In New York, Eddie Wise was arrested and convicted ofloitering seven times after the New York loitering statute was heldunconstitutional. (57)

Because this legal indifference erodes the rule of law, itderogates the significance of guilt and criminal culpability--thefoundational issues of fault that criminal law is designed to evaluate.The pressure to plead guilty quickly, without attention to rules orevidence, reflects a cultural disregard for the individuated evaluationof whether a particular person is guilty, culpable, and deserves to bepunished. Sometimes this speed and pressure leads to wrongfulconvictions; many misdemeanor defendants plead guilty to crimes of whichthey are demonstrably innocent. (58) But the normative erosion runsdeeper: it is a basic abdication of the fault model at the bottom of thepenal pyramid, where offenses are pettiest and defendants are poorest.(59) In effect, the misdemeanor legal system has declared that it is notdeeply concerned whether defendants have actually committed the crimesfor which they have been arrested, as it will not meaningfully inquireinto the question.

This cavalier institutional attitude towards guilt and criminalculpability is largely, though not solely, deployed against the mostsocially vulnerable and stigmatized populations: the poor, people ofcolor, the homeless, and the addicted. (60) The idea of the"criminalization of poverty" partially captures this dynamic.Many misdemeanors are crimes of poverty in the first place, such asdriving on a suspended license for failure to pay fines or sleeping orurinating in public due to homelessness. In addition, heavy streetpolicing of low-income neighborhoods makes it more likely that the poorwill encounter the criminal process. The misdemeanor population is alsoheavily skewed by race and ethnicity, largely due to low-level policingpractices. African Americans are four times more likely to be arrestedfor marijuana possession than whites even though blacks and whites usemarijuana at the same rates. (61) In Ferguson, Missouri, the Departmentof Justice found that over 90% of low-level citations and arrests wereenforced against African Americans, who comprised only 67% of thepopulation. (62) Similarly, in Baltimore, African Americans comprise 63%of the population but between 80% and 90% of all arrests. In particular,Baltimore police rely heavily on order-maintenance and drug-possessionarrests which are especially racially skewed. (63) In Nebraska, AfricanAmericans make up only 5% of the population, but 19% of all misdemeanorcases. (64) Such disparities make the misdemeanor process a frontlinecontributor to the racialization of crime.

These twin dysfunctions--the erosion of legal commitments and theactive perpetuation of social inequality--are linked both conceptuallyand in practice. In theory, inattention to substantive criminal lawmakes room for the selection of defendants based on extralegal factorssuch as wealth and race. A system authentically motivated to ferret outcrime and guilt should, as it were, resist selection based onnonevidentiary social characteristics. At the same time, strong legalnorms generally make it more difficult and expensive to criminalizepeople. (65) Inattention to evidentiary and procedural constraints thuspermits convictions that might not otherwise occur, which is a way ofsaying that weak legal norms contribute to the overcriminalization ofthe disadvantaged. In practice, the disadvantaged are the naturalsubjects of the petty-offense process. It disproportionately selects andconvicts them, formally and permanently labeling them criminal in waysthat, in turn, reinforce their social vulnerability. The misdemeanorsystem, in other words, affirmatively generates social and racialstratification through its selection processes and its disregard forlegal rules and evidence of guilt. (66)

These inequitable dynamics have inspired much of the recentgroundswell of critical scholarship around misdemeanors. (67) Whichbrings us to Misdemeanorland and its meticulous description of New York.

II. NEW YORK CITY

A. The Legal System's Response to Broken-Windows Policing

Misdemeanorland is about the impact of "broken-windows"policing on New York's misdemeanor legal apparatus and culture. Inthe 1990s, New York City embarked on a massive investment in what iscommonly known as "broken-windows,""order-maintenance," or "quality-of-life" policing.Other major cities such as Los Angeles and Chicago, and a myriad ofsmaller jurisdictions, did the same. (68) But the scale andspectacularly costly results of New York's commitment made it theposter child for the experiment. As noted above, the surge inmisdemeanor arrests meant that New York's misdemeanor courts wentfrom processing 65,000 misdemeanor arrests in 1980 to 251,000 in 2010.(69) The largest categories of arrests were for drug possession, minorassault, turnstile jumping, larceny, and trespass. (70) The practiceremains heavily focused on low-income communities of color; in 2015,eighty-one percent of misdemeanor arrestees were African Americans orLatinos, although those groups comprise only about fifty-three percentof New York's population. (71) Broken-windows arrests ebbed after2010 for a constellation of reasons, including successful civil rightslitigation, public protest, and a growing recognition of the racialdisparities of the practice. (72)

Broken-windows policing has generated an enormous controversy andliterature. The underlying theory maintains that strictly enforcinglow-level offenses will reduce more serious crime up the food chain, aclaim that remains empirically unverified and hotly contested. (73) Atthe same time, heavy misdemeanor enforcement in low-income communitiesof color has been widely decried as racist, ineffective, and costly. AsBernard Harcourt put it,

The order-maintenance approach fails to explore how... the categoriesof the disorderly and the law abider... are themselves shaped bypolicing and punishment strategies. The result is that these categoriesmask the repressive nature of broken-windows policing and overshadowsignificant costs, including increased complaints of police misconduct,racial bias in stops and frisks, and further stereotyping of blackcriminality. (74)

Misdemeanorland tells the story of what the New York courtsystem--its prosecutors, judges, and public defenders--did with allthose broken-windows cases. In essence, it treated them as anopportunity to exert control over the policed population through"marking," "procedural hassle," and"performance," a collection of social control practices thatcomprise what Kohler-Hausmann labels "managerial justice."Kohler-Hausmann argues that New York's managerial turn altered thesignificance and purpose of the low-level criminal process, that itbecame increasingly concerned with tracking and evaluating people. Shecontrasts the managerial model with what she terms the"adjudicative model," which is concerned with evidence,convictions, and legal punishment. (75) In the adjudicative model, thegoal is to determine guilt: "the animating task organizing the workof criminal justice actors is to determine whether the defendant in factcommitted the criminal act of which she is accused." (76) Bycontrast, managerial justice is about evaluating people. " [T] hedriving question--the one that determines how prosecutors and judgeswill deal with the case--is about the type of person before them."(77) The book's central claim is that New York's lower-levelcourts "have largely abandoned... the adjudicative model ofcriminal law administration--concerned with deciding guilt andpunishment in specific cases--and instead operate under... themanagerial model--concerned with managing people through engagement withthe criminal justice system over time." (78)

Although managerial justice has deep normative implications,Kohler-Hausmann explains its adoption as a largely pragmatic move on thepart of legal officials, a "particularly rational adaptation to theprofile of defendants and the resource constraints that actorsface[d]" as a result of the massive influx of low-level cases. (79)"[A]s the lower criminal courts were flooded with cases from BrokenWindows policing," she narrates, "they drifted toward amanagerial model." (80) The legal turn towards managerialism"can be understood as a result of creative problem solving in theface of the specific dilemmas and practical circ*mstances of doing legalwork in misdemeanorland in the era of Broken Windows policing."(81) "[L]ess the result of planned and purposeful policydesign," she writes, managerial justice represents an"adaptive emergence of practical strategies adopted by front-linelegal actors in the shadow of the intentional policy choices made by thepolice and local and state governments." (82) Managerialism itselfis both an intentional and unintentional practice. "Sometimescriminal justice actors intentionally rely on [managerial] marking,procedural hassle, and performance," but sometimes "thesetechniques emerge as the unintentional upshot of the uncertainty andtransaction costs inherent in the criminal process." (83)

Prosecutors in misdemeanorland are the lead decision makers, butjudges and defense attorneys accept and perpetuate managerialism. (84)Judges ratify the approach because they face the same professionalpressure to clear dockets as prosecutors and public defenders. And likeprosecutors, judges accept managerialism's normative presumptionthat people brought into the misdemeanor system should be marked,tracked, and managed in some way. (85) Defense attorneys accede becauseit permits their clients to escape immediate conviction and harsherpunishments, because they have heavy caseloads, and because litigationimposes substantial costs and risks on defendants.

Although the managerial response to broken windows was highlypragmatic, according to Kohler-Hausmann it also reflected substantive,equitable changes in prosecutorial thinking and decision-making. Insteadof routinely seeking conviction, prosecutors accepted lighter forms ofmarking and tracldng and the building of dossiers on defendants,"illustrat[ing] a sentiment that it is morally unnecessary for theheavy machinery of criminal justice to come down on every defendantaccused of a low-level offense if the person can prove himself to beresponsible and governable." (86) Prosecutors were willing toaccept managerial justice "in lieu of formal punishment because itis a form of hard treatment that does not entail creating a lifelongcriminal record, which they may believe is unwarranted." (87)Managerial justice embodied a shift towards leniency--or, asKohler-Hausmann puts it, a "substantive principle ofproportionality, which is that people do not necessarily deserve to bepunished for every incident of low-level offending." (88) "Themoral principle at work in the managerial model," she explains, is"that we essentially don't seek any punishment at all unlessthe person demonstrates a persistent disregard for social rules andotherwise seems unmoored from other institutions of socialcontrol." (89)

As an empirical matter, managerial justice in New York translatedinto widespread criminalization. The vast majority of broken-windowsarrests became criminal cases--at the outset, prosecutors declined toprosecute "somewhere between" 7% and 12% of those hundreds ofthousands of arrests. (90) Later in the process, prosecutors dismissedoutright another 12% to i5%. (91) The most frequent trigger for thesedismissals occurred when the speedy-trial clock ran out, initiating a"30.30," which can take months. (92) Approximately 25% to 30%of cases were resolved by an "adjournment in contemplation ofdismissal," (ACD), a kind of pretrial probation or diversionwhereby the defendant may be required to adhere to various requirements,usually for six months to a year. (93) If defendants meet the conditionsof their ACD, the case is dismissed and sealed. If they don't, theyare convicted.

The rest of the cases, around 50%, resulted in a conviction of somekind--20% for Class A or B misdemeanor crimes ("lettercrimes"), and 30% for noncriminal violations, mostly disorderlyconduct. (94) The vast majority of convictions were the result of aplea--almost no one went to trial. (95) Most dispositions in New Yorkare fast--as many as two-thirds of dispositions occur at arraignment, assoon as the defendant comes to court for the first time. (96)Conversely, for those rare defendants who want to contest their guilt,the process is painfully slow; it can take months to get a trial. (97)

New York has numerous rules of thumb when it comes to dispositions,based largely on prosecutorial guidelines. A person with no priorarrests facing a petit larceny charge will get "an ACD with theStoplift program or a day of community service." (98) A person witha prior ACD on their record will not be offered another one. Offers aregenerally determined by the type of charge and the defendant'sprior record. (99) Despite the relative speed and predictability of theprocess, Kohler-Hausmann repeatedly rejects the"assembly-line" metaphor used by the Supreme Court in1972--and many scholars since then, including me--as a way ofidentifying speedy, rote, or mechanical aspects of the misdemeanorprocess. (100) She maintains that the metaphor inadequately captures thenuances of decision reflected, for example, in the differentialtreatment of first-time offenders, or the fact that many cases resultnot in conviction but in some other sort of disposition. Feeley alsothought the term "assembly-line" too formulaic--he preferredthe "supermarket" metaphor because it captured "thecasualness and confusion characteristic of decision-making in the lowercriminal courts." (101) The misdemeanor apparatus has garnered manyother nicknames and metaphors along the way, including cattle herding,"meet 'em and plead 'em" lawyering, and"Mcjustice." (102)

Of course, no one actually thinks the misdemeanor system iscompletely "mechanical" or "one-size-fits-all."(103) But Misdemeanorland provides quite a few instances of speedy,rote, or mechanistic dispositions that are illustrative of why theassembly-line metaphor has stuck over the decades. In two boroughs,"the DA's office had standard offers printed on a sheet thatlisted the office policy for arraignment offers by charge type andnumber of prior arrests." (104) "[T]here's really notime," observed one former prosecutor, "in the space of athirty-second arraignment call to see how this case is different fromany other case." (105) Because pleas are so standardized,"clerks and paralegals can guess which cases will be disposablesimply by looking at the charging documents and rap sheets." (106)In one case, "the supervising arraignment lawyer for one of thepublic defender organizations [] walked over to the prosecution tablewith stacks of files, saying, 'all of these will be marijuanaACDs.'" (107) In another case involving six differentdefendants, "[a]s soon as the court officer finished reading thecharges, the judge immediately granted an ACD to all defendants en massewithout any discussion." (108) Similarly, "[i]n somecourtrooms, judges issue marijuana ACDs without requiring defendants toeven walk up to the podium: their names are called, they stand up in theaudience... while the judge issues the order, practically yelling itfrom the bench." (109) New York's misdemeanorland may beevaluative, but it also has plenty of speedy, standardized qualities.(110)

As people pass through misdemeanorland multiple times, theyaccumulate new and different marks which trigger increasing levels ofpunishment. The process is "additive": prosecutors make clearthat people need to be punished more if they've been tomisdemeanorland before. "The understanding is that... a defendantshould be subjected to more marking, procedural hassle, or performancefor each subsequent encounter or failure to discharge some requirementof the current encounter." (111) "Our offers areprogressive," says one prosecutor. "[F]irst the ACD, then theviolation, then the misdemeanor, etc.[,] etc., etc." (112) Indeed,the number and quality of marks on a person's record often play agreater role in determining the state's response than the nature ofthe crime itself. (113)

Because broken-windows policing predictably sweeps in disadvantagedclasses of people from identifiably poor neighborhoods of color, thisinfuses misdemeanor processing with race- and class-based significance.As Kohler-Hausmann explains, "Arrests from these spaces have asocial meaning, one that translates into a presumption of need forsocial control over the people who are brought from them tomisdemeanorland." (114) "[Sjpace, race, and ethnicity infused[broken-windows] arrests with a special set of meanings that would shapehow legal actors would process those arrests." (115) In thisnarrative, the legal process inherited the class and racial assumptionsembedded in broken-windows policing regarding which neighborhoods andpeople are disorderly: "[T]he disposition patterns inmisdemeanorland... seemed institutionally viable given the socialmeaning of the infractions and defendant profile at hand." (116) Asa result, "the populations that are most heavily targeted by BrokenWindows policing, namely, low-income men of color, become a populationwith an ongoing burden to prove governability in lower criminalcourts." (117) Taken together, these social practices andassumptions operationalized a suspicious attitude toward the defendantpool.

B. Mapping Managerialism: Marking, Procedural Hassle, andPerformance

Misdemeanorland devotes a chapter to each of the three pillars ofmanagerial justice: marking, (118) procedural hassle, (119) andperformance. (120) These chapters detail the ways that the processhandles people and cases, "explicating] the techniques throughwhich misdemeanor criminal court actors extend social control over thepopulations they encounter." (121) This is the core ofKohler-Hausmann's fieldwork. She offers aggregate data and numerousstories depicting the specifics of criminal record-keeping, the burdensimposed on individual defendants, and how defendants are measured andevaluated in ways that affect their legal treatment and casedispositions. (122) She lightly implies that these practices areirrational by starting Chapters Four, Five, and Six with quotations fromFranz Kafka's The Trial, (123) but her ultimate conclusion is that,far from irrational, they represent intelligible, pragmatic, andarguably defensible systemic legal compromises with broken-windowspolicing. (124)

The chapter on "marking" describes New York'smassive investment in record keeping, which forms the backbone of themanagerial approach. Before the 1990s, New York did not keepparticularly close track of low-level defendants or their arrests,appearances, or performances. (125) This changed with the advent ofbroken windows and the intensive data-management practices known asCompStat--these policies created detailed records about people in thesystem while erecting a new infrastructure capable of managing thatdata. (126) Today, New York prosecutors, defense attorneys, and judgesknow how many times people are arrested, cited, charged, given an ACD,or issued a warrant, and they know whether a defendant showed up late tocourt or flunked a treatment program. These records in turn play acentral role in determining case dispositions. Prosecutors make pleaoffers in light of a defendant's entire dossier, not just thenature of the current crime for which they have been arrested."Judges and prosecutors frequently say that one of the mostimportant determinants of case disposition is the record of adefendant's prior criminal justice encounters, such as arrests,bench warrants, compliance with court mandates, and other indications ofgovernability, including steady employment, family, or housingconnection." (127) This is especially true at arraignment, which iswhen more than half of all cases are resolved: the record dominates atthe beginning of the case because the lawyers have few facts about thecase at hand.

The marking analysis is central to the book's project becauseit supports the thesis that New York's misdemeanorland is exertingmanagerial control--evaluating people--as much or more than it is doingtraditional criminal adjudication aimed at determining guilt orinnocence. To state the obvious, whether a person shows up to court hasnothing to do with whether she has committed a crime. Nevertheless,under managerialism, failing to show up will impact the substantiveoutcome of her case. The chapter also indirectly elucidates theimportance of record keeping in misdemeanor processing more generally.New York keeps copious data on its misdemeanor criminal dockets, as wellas the people in them. (128) Most other jurisdictions collect andprovide far less misdemeanor data, or none at all. (129) The specificityof social control in New York thus turns at least in part on thestate's willingness to invest in data collection. Ironically, thisparticular investment in social control also increases the transparencyof the entire process. By contrast, in many other cities and states, wesimply have no idea on what basis the misdemeanor process is sortingpeople, the nature of dispositions, or even how many cases there arealtogether. One of the takeaways from Misdemeanorland is how revelatorymore aggregate data in this realm could be. (130)

The chapter on "procedural hassle" describes the manyburdens that the misdemeanor process imposes on those who pass throughit. (131) Hassle encompasses a wide range of defendant experiences,including the intrusive "ceremony of degradation" thatconstitutes arrest; (132) the filthy stench of the holding pens atcentral booking; (133) waiting in long lines at the courthouse; (134)and having to come back to court repeatedly, missing work, or having tofind childcare. (135) The purpose of hassle is to create "a seriesof opportunities to engage defendants in official encounters withsymbolic meaning, construct their status vis-a-vis the court and itspowers, and to discipline and reform their behavior." (136) Hassleputs people in their place, establishes their "denigrated"social status within the criminal process, and wears down their sense ofautonomy and dignity. (137)

The criminal process is famously oppressive and degrading,especially for the poor, and Misdemeanorland offers powerful examples.In police-precinct holding cells where arrested defendants wait fortheir court appearances, "[r]ats, mice, and roaches are a commonsighting, and smashed cheese sandwiches, the only food offered duringthe entire arrest-to-arraignment period, litter the floor, in partbecause people sometimes use the plastic-wrapped sandwiches aspillows." (138) The "filth and stench of the precinct holdingcell" was so disgusting and traumatizing that one defendant, Kima,would not sit down on the bench; instead, she stood for seven hours.(139) Some defendants are issued "desk-appearance tickets"instead of being arrested; they must appear in court to resolve them. Inorder to do so, they "need to take off at least one day from workor child-care responsibilities to come to the courthouse at 9:00 a.m.... They must then sit patiently in a crowded courtroom, sometimes allday... waiting for their 60-120 seconds in front of the judge."(140) If they cannot stay all day and instead leave during thelunchbreak, a warrant will be issued. (141) Jannelle, a college student,described how her sense of self was "despoiled" by spendingtime in the jail and by being publicly humiliated in the courtroom.(142) It is one of the special contributions of Misdemeanorland that itoffers such a thick, vivid account of how the process actually becomesthe punishment.

Finally, the third central feature of managerial justice is"performance." Kohler-Hausmann defines performance as

a distinct penal technique [showing that] the defendant has dischargedsome meaningful undertaking that is evaluated by court officials. Hehas complied with some duty, assigned task, program activity,therapeutic encounter, or proposed some other behavioral accomplishmentthe court actors can interpret as expressive of the defendant'scharacter or worthiness. (143)

Required performances include showing up to court on time,conforming to court demands, participating in various programs, anddemonstrating participation in work, childcare, and other responsiblebehaviors. Performance is closely related to hassle: some hassles arealso required performances. Performance is also intimately tied tomarking: succeeding or failing at a particular performance generates arecord and becomes the basis for the system's ongoing evaluation."Performance is a tool," writes Kohler-Hausmann, "thatallows prosecutors and judges to observe some capacity of defendants tofollow official directives in the face of profound uncertainty aboutwhat type of person the defendant is." (144)

Many if not most performance demands have nothing to do with crimeor a defendant's culpability, but they are not random: they"bear some rational relation to what might be imagined aspropensities for law abiding in general." (145) They are tests ofpeople's ability and willingness to follow rules, to submit toauthority, and thus to "prove governability." (146) This isthe ultimate aim of managerial justice: "Prosecutors and judgesinspect defendants' performances for signs that they can be guidedby official directives or are enmeshed in mainstream institutions,activities, and lifestyles." (147) One implicit consequence of thissystematic reliance on performance is to overpunish the poor. Anemployed person who shows up on time to court and makes childcarearrangements will be treated more leniently, while a person too poor toget a subway ticket and with no social support network to care for hisor her children will be punished for noncompliance even if theircriminal behavior is less culpable.

This exegesis of performance is central to Misdemeanorland'sworldview and makes a substantial contribution to the scholarlyconversation around misdemeanors. It gives descriptive teeth to thevague term "social control." It adds to a long sociologicaltradition that critiques the specific mechanisms used to control thepoor. (148) In one of the pithiest expressions of the book'sdescriptive thesis, Kohler-Hausmann writes:

As in welfare offices, the way performances are demanded and evaluatedin misdemeanorland expresses the presumption of need for social controlthat arises from the social standing of the people subject to itspower. The subjects of Broken Windows policing are almost exclusivelypoor people of color from the city's most disadvantaged neighborhoods.The penal technique of performance in lower criminal courts mirrors atheme that is repeated in multiple sites: that these populations areinherently disorderly and must affirmatively prove their fitness forfreedom. (149)

The performance mandate also supports Misdemeanorland's claimthat there has been a shift in the aims of the low-level criminaljustice endeavor. Traditionally, a criminal case is thought to evaluatea very specific sort of performance--whether or not the defendant hasviolated a particular criminal law. A great deal of criminal law,procedure, and evidence doctrine is devoted to ensuring that people areconvicted only for what they do, not for their general character,personal traits, or social status. (150) Misdemeanorland shows that thistraditional function now coexists with mandatory performances and otherdemands of managerial justice that measure not criminal conduct, butgeneral rule compliance and governability.

III. THE PUNITIVE SPECTRUM: FROM MANAGERIALISM TO CONVENTIONALPUNISHMENT

Misdemeanorland illuminates the breadth and depth of the spectrumof punitive options exercised by the petty-offense process. AlthoughKohler-Hausmann concludes that "the managerial model betterdescribes the vast majority of operations in New York City's lowercourts," managerialism is not the entire story; she notes that"lower courts [also] maintain some adjudicative traits." (151)Part of appreciating managerial justice involves recognizing the extentto which New York still punishes, incarcerates, and formally convictsmany of its misdemeanor subjects. Although Misdemeanorland is not acomparative project, its excavation of New York practices invitescomparisons with other jurisdictions that rely more or less heavily onconventional punishment or that may be engaging in managerialism intheir own ways. (152) Accepting New York as exemplary of the managerialmodel, this Part unpacks the persistence of conventional punishment inthe New York system in order to clarify the scope of that punitivespectrum and to open up a comparative conversation.

Misdemeanorland offers numerous examples of how New York continuesto convict and punish in traditional ways. For example, theprocedural-hassle category includes many impositions that are alsoclassically punitive or well understood as collateral consequences ofconviction. These can include license suspensions and the loss ofcredit, jobs, and money. (153)

Misdemeanorland is not centrally concerned with incarceration--themost familiar form of punishment--because, as Kohler-Hausmann states atthe outset, "noncarceral penal operations... constitute the largestcomponent of our criminal justice system's operations." (154)Although jail is still "a pressing policy issue," she writes,it is "less common than... most people would guess." (155) ButNew York still routinely deploys incarceration. Approximately 10% ofconvicted defendants receive a prospective jail sentence, while another15% are sentenced to time served, namely, incarceration that they havealready experienced. (156) Thousands more spend brief periods of time injail upon arrest or after being picked up on a warrant. (157) Jail isespecially influential when bail is set: 80% of people set bail cannotafford it and therefore face jailtime at the notoriously dangerousRikers Island. This is where sixteen-year-old Kalief Browder spentthirty-three months awaiting trial for a robbery charge, an experiencethat drove him to commit suicide. (158) The threat of Rikers, in turn,induces guilty pleas. (159)

Even for those who do not go to Rikers, the pretrial incarcerationexperience is highly punitive. The chapter on hassle describes thesqualor of police precinct jail cells, holding pens in Central Bookinginfested with vermin, and a single toilet used by dozens of people.(160) People stand for hours, or even all night, rather than sit or liedown on the unsanitary floors. (161) Researchers have shown, moreover,that just a few days of incarceration can alter a person's lifetrajectory, including the disposition of their criminal case, theirsentence, and their likelihood of future offending. (162) All of this isto say that even managerial justice deploys the punitive pains andburdens of incarceration in a wide variety of ways.

Likewise, formal conviction remains important in New York.Kohler-Hausmann states that " [a]mong my empirical findings arethat misdemeanorland is a place that produces very few criminalconvictions... and it is a site where legal actors do very littleadjudication." (163) And indeed, overall conviction rates fellafter broken windows inundated the courts. Nonetheless, between 2010 and2015, roughly half of all misdemeanor defendants in New York were stillformally convicted. (164) Because broken windows created a massiveinflux of cases, that meant that approximately 100,000 New Yorkers wereformally convicted every year since 2000. (165) To be sure, not allconvictions are created equal: approximately thirty percent of alldispositions were noncriminal convictions, mostly for disorderly conduct("dis con"), while no more than twenty percent wereconvictions for a Class A or B criminal misdemeanor. (166) But dis-conconvictions are not as lenient as the label "noncriminal"makes them sound. Disorderly conduct carries up to fifteen days in jail,and the mark of a dis con remains punitive in its own right, interferingwith job security, housing, and future encounters with the criminalprocess. (167) As one public defender put it,

I think that the dis con resolution is underrated, in terms of theeffect that it has on people's lives. Especially for young peoplegetting arrested... because a dis con appears on your rap sheet. So youthink a dis con is no big deal--it's a violation, it's not a crime. Butit appears. And it will turn into a misdemeanor if you are at all atrisk at having the increased police contact--which lots of our clientsare. (168)

One of the central arguments in Misdemeanorland is that because NewYork relies heavily on ACDs and does not immediately insist on formalconviction, it has "largely abandoned" attention to guilt andits attendant formal punishments, replacing it with a lighter managerialcommitment to evaluation and informal control. (169) This argumentresonates with an ongoing national conversation regarding diversionarydispositions such as ACDs, which are highly popular reforms and widelytouted as a lenient solution to overcriminalization. (170) ButMisdemeanorland incidentally reveals how much diversionary dispositionsand convictions still have in common. ACDs are pretrial probations thatsubstantially mark and burden defendants. "An ACD is adismissal," explains one prosecutor, "but one way to phrase itis it involves a six-month probationary period." (171) A judgecalls it "a low-maintenance form of probation." (172) The markis theoretically temporary--it is sealed upon dismissal six months or ayear later if the defendant complies with all the terms of the probation(173)--but it does a lot of conviction-like work in the meantime. Whilethe case is open, it sits in the state's public, searchable onlinedatabase where anyone can find it. People may be disqualified from,suspended from, or dismissed from various jobs. (174)

Sometimes the mark stays on people's records even when itshould not. (175) Another prosecutor "explained that whenever shesees an ACD on the rap sheet, even one that should have sealed but didnot because of some administrative error (which is surprisingly common)she 'knows not to offer the ACD again.'" (176) New Yorkprosecutors also fight to retain access to ACD marks. "Anincreasingly common [prosecutorial] practice... is demanding thatdefendants 'waive' sealing altogether." (177) Moreover,"conditional marks like the ACD can transform into permanent marksif a person fails to discharge a mandated performance or cannotwithstand the procedural demands of misdemeanorland." (178)Kohler-Hausmann does not say how many people with ACDs successfullycomplete their probations, but nationally approximately one-third ofprobationers fail their probations, (179) so presumably some nontrivialpercentage of New York ACDs eventually convert to convictions. (180)

This spectrum of managerial and adjudicative punishment in New Yorksuggests ways of evaluating misdemeanor decision-making in otherjurisdictions. In Connecticut, for example, 60% of misdemeanors areresolved by a "nolle prosequi," which in practice is adeferred prosecution that works similarly to an ACD. (181) Futuresociologists might investigate whether Connecticut exhibits othermanagerial traits such as heavy investments in individual record keepingor intrusive performance requirements. In Texas county courts, bycontrast, approximately 42% of misdemeanor cases result in guilty pleas;approximately 32% are dismissed; and only about 14% of cases arediverted. (182) In Kentucky, over 60% of order-maintenance,marijuana-possession, DUI, and driving-on-a-suspended-licensemisdemeanor cases result in conviction. (183) LaFave's treatiseestimates that at least thirteen percent of U.S. misdemeanor cases aredismissed and another fifteen percent are diverted, while the restresult in conviction. (184) Every jurisdiction thus deploys its own mixof traditional criminal tools of conviction, punishment, and socialcontrol, as well the more informal but still burdensome marks andcontrols that fall short of conviction. Misdemeanorland nicelyilluminates this spectrum of state responses to low-level criminalconduct and the complex relationship between formal and informalpunishments.

IV. AN ADVERSARIAL TAKE ON THE MANAGERIAL COMPROMISE

A central feature of the American adjudicative model is theadversarial relationship between prosecution and defense. Unlikeinquisitorial systems, adversarial systems rely on the clash betweendefense and prosecution to ensure accuracy and to enforce due processand other procedural rights. (185) As the Supreme Court has often said,the right to counsel is the system's primary means for testing thegovernment's evidence and guaranteeing accurate outcomes. (186)Misdemeanorland argues that New York's misdemeanor system largelyreplaced the adjudicative model with managerialism, in particular withmanagerialism's disregard for evidence and guilt. But thatcharacterization--and the adjudicative/managerial binary moregenerally--does not quite capture the persistence of the adversarialquality of the New York's system. More specifically, it does notaddress whether those adversarial practices might represent a lingeringcommitment to procedural adjudicative norms.

This omission is a natural consequence of the book'sdefinition of the adjudicative model as one concerned with evidence andguilt--it is a model defined by its substantive interests, not itsprocedural character. (187) But procedurally speaking, adversarialism isintegral to the practice of adjudication and constitutes the primarymeans through which adjudicative commitments to evidence, guilt, andrules are effectuated. (188) The fact that New York lower courts remainrobustly adversarial thus complicates the managerial story.

Although Misdemeanorland does not grapple explicitly with thestructural role of defense counsel, it offers rich descriptions of howpublic defenders navigate the system on behalf of their clients. Drawingon the many adversarial narratives contained in Misdemeanorland, thissection proposes understanding managerialism as a prosecutorialcompromise not only with broken-windows policing but with NewYork's storied and aggressive public-defense bar. As the bookdescribes it, New York defense counsel put up substantial resistance toconvictions and to the "meet 'em and plead 'em"mindset, even as prosecutors stubbornly resist dismissal. Thispersistent conflict indicates that the adjudicatory adversarial systemis alive and well in New York, and that managerialism might even be oneof its byproducts. If so, Misdemeanorland could provide new insightsinto the full costs and consequences of the nationalmisdemeanor-public-defense crisis.

A. Gideon in Misdemeanor Processing

One of the best-documented characteristics of the nationalmisdemeanor landscape is the chronic lack of meaningful access todefense counsel. (189) Misdemeanor defendants are not constitutionallyentitled to counsel if their convictions cannot result in incarceration.(190) But most misdemeanor defendants face the possibility ofincarceration one way or another, and in many courtrooms they do not getlawyers and are never informed of their constitutional right to one. Inone Pennsylvania court, for example, misdemeanor defendants were simplytold to go to the basem*nt to negotiate a plea deal directly with theprosecutor, after which they came "back up to the courtroom toplead guilty and be sentenced." (191) In Georgia, observers watcheda judge inform a large group of misdemeanor defendants of their rights.After the judge left the bench, three prosecutors instructed thedefendants to form a line and follow them one at a time into a privateroom. When the judge returned to the courtroom, each defendant cameforward with the prosecutor, who informed the judge that each defendanthad waived their right to counsel and wanted to plead guilty. (192)"The dirty little secret of the criminal justice system,"admitted one Kentucky defender, "is that most eligible people donot get defenders." (193)

Sometimes, it is not even a secret. In 2007, Jean Hoefer Toal,Chief Justice of the South Carolina Supreme Court, candidly admitted ata public meeting that South Carolina does not appoint counsel even whenclearly required by the Supreme Court's decision in Alabama v.Shelton. (194) As she explained,

Alabama v. Shelton [is] one of the more misguided decisions of theUnited States Supreme Court, I must say. If we adhered to it in SouthCarolina we would have the right to counsel probably... by dragooninglawyers out of their law offices to take these cases in everymagistrate's court in South Carolina, and I have simply told mymagistrates that we just don't have the resources to do that. So I willtell you straight up we [are] not adhering to Alabama v. Shelton inevery situation. (195)

In most jurisdictions, public defenders have notoriously heavycaseloads. (196) Average spending in the United States on indigentdefense is $11.86 per capita, (197) less than two percent of the $265billion spent annually on the justice system. (198) The ABA recommendscaseloads of no more than 300 misdemeanor cases per year. (199)Nevertheless, public defenders in Dallas juggle 1,200 misdemeanors eachyear; in Chicago, Atlanta, and Miami, annual caseloads exceed 2,000.(200) As a result of these pressures, public defenders often have mereminutes to meet their clients, review their files, and providerepresentation--hence the nickname "meet 'em and plead'em" lawyering. (201) In 2013, a federal district court inWashington State declared this state of affairs unconstitutional. (202)In 2015, the Senate Judiciary Committee heard testimony that "inmany places people go to court with no lawyers at all, or the lawyersthey have are overwhelmed with cases, poorly trained, poorly paid, andoperating without necessary support such as investigation and expertwitness resources." (203)

The national paucity of misdemeanor defense counsel makes New Yorkespecially interesting: every defendant in New York gets a lawyer. Statelaw provides counsel for all misdemeanor defendants, whether they faceincarceration or not. (204) Thus, people who are not constitutionallyentitled to counsel, and who would not get counsel elsewhere, arerepresented.

Furthermore, Misdemeanorland indicates that the New York defensebar is highly engaged. The book is full of accounts of aggressiverepresentation in which a defense attorney's tenaciousness resultedin demonstrably better outcomes. In these accounts, New York defendersare clearly overloaded like their national counterparts, (205) but theystill understand their mission as one of zealous representation."Of course you are going to have done your investigation. Of courseyou are going to research it," remarks one public defender. (206) Aprosecutor relates that there is " [a] lot of... fighting incriminal court between the defense bar and the prosecution over the'letter' [taking a Class A or B misdemeanor]." (207) Inone case, a public defender's herculean efforts over eight monthsand fourteen court appearances led to her client's full-outacquittal. (208) In another, a persistent defender managed to get aresistant prosecutor to "'come off the misdemeanor' andoffer a violation plea." (209) Advocacy takes place on aninstitutional as well as individual level: when prosecutors proposedincreasing the weight of an ACD mark, "defense organizationsstrenuously resisted." (210) Misdemeanorland thus reveals withspecificity just how impactful a robust defense bar can be in the worldof petty offenses.

B. Prosecutorial Complicity in Broken-Windows Policing

Defense zealousness is especially significant in New York becauseprosecutors are deeply reluctant to dismiss cases. Prosecutors treatalmost all arrests as presumptively meaningful incidents of criminalitythat require some punitive response. There is "an institutionaldisposition to do somethingwith these cases." (211) As oneprosecutor put it, "I can tell you that we don't dismisscases. I mean we do, but we have to have proof that [the defendant] isnot guilty." (212) Even where defendants provide evidence of actualinnocence and other potentially meritorious claims, prosecutorsroutinely refuse to dismiss cases, insisting on imposing some sort ofmark and burden. (213) In one example, a defendant was charged with fareevasion for using a special MetroCard for people with disabilities. Hebrought in a letter from his employer, a social-services agency,explaining that part of his job was to help people with disabilitiestake subway trips and that he had the card for that legitimate purpose.He explained that at the time, he was helping a large group of disabledpersons navigate the subway and that he had swiped his regular cardalong with their special cards. Nevertheless, because he could not provethat he had not swiped the wrong card, the prosecutor refused to dismissthe case and offered an ACD instead. (214) Similarly, prosecutorsrefused to dismiss the case against a defendant who was found with anoxycodone pill in his pocket, even though he produced his validprescription for the medication. He was offered an ACD. (215) Convictingthe innocent is widely accepted. As one public defender explainedbluntly to her client, "Dis con is what they offer innocent peoplewith records." (216)

This prosecutorial tenacity is a deep feature of the legalsystem's response to broken-windows policing. New York prosecutorscould have reacted to the onslaught of low-level arrests beginning inthe 1990s in a variety of ways. They could, for example, have treatedthem as expressions of contestable policing priorities rather thanindividual criminality warranting prosecution, and in so doing,increased their initial declination rates. (217) Indeed, prosecutors intwo boroughs recently did just that, at least with respect to certainoffenses. In 2012, the Bronx District Attorney's Office wasconfronted with a civil rights lawsuit and evidence that police weregratuitously arresting people in public housing for trespassing. Thedistrict attorney instituted an office policy against proceeding withtrespassing prosecutions based solely on police reports. (218) Likewise,in 2014, the Brooklyn District Attorney rolled back marijuana-possessionprosecutions, both because of the racial disparities in arrest rates andthe notion that prosecution was overkill in such cases. (219) In asimilar vein, Baltimore has experienced many of the same challenges ofracialized overpolicing as New York. There, police supervisors andprosecutors decline to prosecute 16% of all arrests at the jail beforedefense counsel is even appointed, and up to 25% of arrests for certainorder-maintenance offenses. (220) By contrast, New York's generalprosecutorial declination rates during the broken window era across allfive boroughs remained between 7 and 12%. (221)

Misdemeanorland implies that conviction rates should have stayedconstant in the face of broken-windows' expansive policing."In many ways," writes Kohler-Hausmann, "the New YorkCity Broken Windows experiment embarrasses our traditional understandingof how an expansion of criminal enforcement should work: as misdemeanorarrests climbed dramatically... the rate of criminal convictions fellsharply." (222) But that "traditional understanding" isonly embarrassed if it assumes that prosecutors' charging decisionsmove in lockstep with police arrest decisions, and that New Yorkprosecutors should have treated the new flood of arrests as meritoriouseven though arrests were being made for new and problematic reasons.That need not have been true. Prosecutors might have decided, as theBronx and Brooklyn District Attorneys eventually did in a limitedfashion, that many cases did not deserve to proceed at all. Thatdetermination would have manifested in higher initial declination rates,early dismissals made not under pressure from defense counsel, but madesua sponte by prosecutors on the merits. The fact that New Yorkprosecutors generally maintain low initial declination rates andgenerally resist dismissal is revealing. It makes them complicit inbroken-windows policing, not merely reactive to it.

C. The New York Adversarial System at Work

This dual phenomenon--a vigorous defense bar and strongprosecutorial antipathy toward dismissal--suggests that Misdemeanorlandcould have told a different, more adjudicative story about the New Yorkcourt system's managerial compromise. As an empirical matter, theflood of broken-windows cases led to "a decline in the rate ofcriminal conviction and an increase in the rate of dismissal,"(223) dismissals that largely took the form of ACDs. Those convictions,in turn, were heavily weighted towards dis cons rather than lettercrimes. The book describes this, at least in part, as a normativeprosecutorial decision regarding desert. "The practice of offeringconditional dismissals [ACDs] in so many cases... illustrates asentiment that it is morally unnecessary for the heavy machinery ofcriminal justice to come down on every defendant accused of a low-leveloffense if the person can prove himself to be responsible andgovernable." (224) Dis cons, which are usually accompanied byconditions, impose a "less serious mark" and do not impose thesame collateral consequences as letter convictions do. (225) In thesedescriptions, the decline in conviction rates and the increase in ACDsrepresent equitable prosecutorial decisions about the appropriate stateresponse to low-level offending. Managerial justice embodies a"substantive principle of proportionality, which is that people donot necessarily deserve to be punished for every incident of low-leveloffending." (226)

But a different way to make sense of the decline in convictionrates and the heavy use of dis cons is adversarial--that the existenceof an aggressive defense bar meant that prosecutors could not simplyconvert all those new arrests into letter convictions. Instead, they hadto compromise in the face of a meaningful defense presence. Managerialjustice was, so to speak, imposed on them. From the defense perspective,"[t]he right to insist on a trial is converted into a tool to forceprosecutors and judges to make more reasonable offers," a classicfeature of the adversarial plea-bargaining process. (227) Force isnecessary because prosecutors demonstrate time and again that they areunwilling to dismiss cases outright, even where the evidence is weak oreven where it indicates actual innocence. Instead, under pressure fromdefense counsel, they offer compromise dispositions. The ACD and the discon are central to the New York landscape not because they are anequitable gift from prosecutors to defendants--products of a lander,gentler managerial mindset--but because they are an adversarialcompromise. They work because they let prosecutors save face, becausethey operationalize the presumptive need to ratify arrests in some way,and because they alter the defense calculus. They are dispositions thatdefendants will often rationally accept even when they have a skilleddefender willing to litigate and even when they might have meritoriouslegal issues and viable defenses. (228)

For example, New York is home to the Bronx Defenders, (229) one ofthe premier public-defense organizations in the country. Between 2011and 2012, the office identified fifty-four marijuana misdemeanorcases--what they called "fighter" cases--in which clients withpotentially meritorious issues wanted to fight their charges. (230) Thefighters were represented by lawyers at the Bronx Defenders and byattorneys at the Manhattan law firm Cleary Gottlieb Steen &Hamilton. But few fighters actually managed to contest their cases, andin the end the majority accepted ACDs or pled guilty, mostly todisorderly conduct. Prosecutors took advantage of court delays,postponements, and the requirement that defendants be physically presentat every court date to pressure defendants to plead. Thirty percent ofthe fighter cases were eventually dismissed--twice the average rate(231)--but only after an average of nine months. (232)

The lesson from the fighter cases is how stubbornly New Yorkprosecutors resist dismissal and adjudication on the merits and thecorrelative importance of a zealous defense. Even with some of the bestlawyers in town, the majority of defendants with colorable issues stillended up with ACDs and dis cons, often after months of litigation.Without those lawyers, it stands to reason that there would have beenfewer dismissals and more defendants would have accepted worsedispositions.

The pressure that defense counsel exert on prosecutors is a classicfeature of the adjudicative system--the beating heart of the adversarialprocess. That is why the Supreme Court treats the right to counsel asthe primary guarantee "that all other rights of the accused areprotected." (233) Evidence does not speak for itself, and dueprocess is not self-enforcing; the adjudicative model depends on defensecounsel to operationalize its commitment to rights, due process, andevidence. (234) Of course, defense counsel's role is not onlyadjudicative. They perform many functions, often operating as de factosocial workers on behalf of their clients, and in that sense could besaid to be doing managerial work as well. (235) But at least in NewYork, the defense bar clearly operates in traditionally adversarial waysin line with the adjudicative model.

This suggests that adjudicative forces, not just managerialism, aredriving some of the reduction in conviction rates. Evidence and guiltare indeed devalued in many ways throughout the misdemeanor process, butthat does not mean that the adjudicative model lacks relevance. Instead,the classic adversarial procedures of adjudication in New York appear tobe producing compromised dispositions that punt on evidentiary questionsof guilt, not because the system has given up on guilt and conviction,but because a robust defense bar makes it hard to determine guilt everytime. Without that defense bar, the process would be more conventionallypunitive. These dynamics suggest that managerial justice has notreplaced the adjudicative model but may even be a result of it.

The influence of the defense bar in New York offers crucialinsights for the rest of the misdemeanor universe, where counsel is sooften lacking. Misdemeanorland shows, step-by-step andnegotiation-by-negotiation, how a robust commitment to theconstitutional entitlement to counsel can profoundly alter the cultureof lower courts and lead to reduced punishment and fewer formalconvictions. In New York, the stakes were ratcheted up by the advent ofbroken-windows policing, but the salutary effects of strong defensecounsel would pertain in the many jurisdictions grappling with heavycaseloads, limited resources, and prosecutorial reluctance to screen anddismiss. (236) At a certain level of generality, the proposition soundsobvious--scholars and the National Association of Criminal DefenseLawyers have been vocally arguing for a decade that the misdemeanorsystem needs better defense resources. (237) But Misdemeanorlandcarefully charts the informal, institutional dynamics through which thepresence of a robust, active defense bar can change the very tenor ofprosecutorial and judicial decision-making, shifting official intuitionsabout foundational questions of what constitutes a fair and justoutcome.

V. MISDEMEANOR JUSTICE?

The sprawling misdemeanor drama in New York and around the countryoffers a poignant reminder of the democracy- and equality-reinforcingaspirations of the rule of law. Demands for due process, evidence, andlegal accountability are some of the core traditional ways in which werender criminal law defensible--bases on which it becomes permissiblefor the state to exercise its coercive criminal authority and to punish.(238) Such rules also have equity-protective features. The requirementthat convictions rest on evidence instantiates the idea that peopleshould only be punished for their criminal conduct--not for their race,class, or disfavored social status. Constraints on police andprosecutorial discretion are, in part, antidiscrimination measures: theyrestrict the unfettered operation of bias and require that arrests andprosecutions be made for legally legitimate reasons. (239) The right tocounsel represents a constitutional effort to level the playing fieldbetween rich and poor, to ensure that the disadvantaged benefit from thesystem's protective rules. (240) Such rules help promote accuracy,(241) but they also operationalize other democratic commitments such astransparency, official accountability, and the preservation ofindividual liberty and dignity--protections most needed by, and mostoften withheld from, the vulnerable. Accordingly, we can think of theadjudicative model, with its rule-of-law commitments, as a centraldemocratic vehicle through which criminal jurisprudence offersprotection to vulnerable people against unjustified state-sponsoredsocial control. (242)

To be sure, such noble-sounding protections are often moreaspirational than real, and even when observed they are often inadequateto guarantee either equality or fairness. The legality principle nullapoena sine lege (no punishment without law) and its adjudicativeinfrastructure mask and validate many injustices, including raciallydisparate enforcement practices and overly punitive sentences. (243)U.S. criminal procedure is infamously underprotective of people ofcolor, allowing racial biases and power inequalities to infect stops,arrests, and the obtaining of consent. (244) By its nature, the rule oflaw is no protection against laws that affirmatively permit or promotediscrimination. (245) But while insufficient on their own, legalconstraints remain pillars of the broader criminal justice equalityproject. This Part explores the close relationship between legal rulesand social equality, and the inegalitarian consequences of a misdemeanorculture that devalues both. It then examines New York'smanagerialism, with its concomitant disdain for adjudicative values andpresumptive demand for social control over the disadvantaged. Itconcludes that the managerial turn away from due process, evidence, andguilt is intimately linked to classist and racist presumptions drivingmanagerial practices.

A. The Equitable Importance of the Rule of Law

The erosion of core legal protections in the U.S. misdemeanorarena--what Misdemeanorland describes in New York as an abdication ofthe adjudicative model--has special inequitable implications, bothprocedural and substantive. As described above, many jurisdictionsacross the country routinely disregard adjudicative norms, factualinnocence, and the right to counsel. (246) Speedy dockets devalue lawand evidence; judicial review is rare because motions and appeals arerarely filed. These dynamics weaken due process commitments, and they doso in ways that erode the fault model itself--society's commitmentto convicting only the guilty. (247) To the extent that the system doesnot bother to follow basic rules or check the evidence, it announces itsagnosticism about whether defendants are actually culpable.

Such erosions call into question some of the basic justificationsfor the exercise of state criminal authority in the first instance.Ignoring defendant fault is, of course, a major deviation from what wetypically understand to be the core project of criminal law. (248) Andeven where defendants are guilty, the underlying conduct at issue inmisdemeanors is typically not particularly dangerous or culpable. Theseare largely low-level harms and disorder offenses, crimes that onlyweakly justify state coercion in the first place. (249) Nevertheless,arrests and prosecutions for that minor conduct impose significantburdens and intrusions. Millions of people every year lose their time,money, liberty, jobs, housing, credit, and immigration status. They arebeing marked, tracked, disrespected, and stigmatized. At these siteswhere criminal conduct is not particularly weighty, and yet punishmentis significant, crime-control justifications are at their weakest whileliberty and proportionality concerns are especially strong.

At the same time, this compromised legal process is aimed largelyat the poor, people of color, the vulnerable, and the dispossessed.Their subordinate status invites attention from the misdemeanormachinery, and that machinery in turn generates and exacerbates theirsubordination. Defendants are often selected and convicted based onwealth, race, neighborhood, and social characteristics other than (or inaddition to) their individual criminal behavior. (250) Through thisself-reinforcing cycle, the politically vulnerable are overexposed to acriminal process that disregards basic rule-of-law constraints whileaffirmatively generating social disadvantage. We might say that thedisadvantaged receive a lower quality version of the rule of law, in thesame way that they receive lower-quality public education, housing, andhealth care. The system provides one weakened set of legal commitmentsfor them and another, more robust set for those who have the socialcapital to insist on greater legal protection. The consequences of thisstate of affairs are far-reaching: those thirteen million annualmisdemeanor cases are the vehicles through which most Americansexperience the criminal justice system. In this way, weak rule of lawbecomes a defining and contributing feature of social disadvantagethroughout the United States.

These dynamics also illuminate the crucial relationship betweenpolicing and legal process. The more policing veers towards the bareexercise of discriminatory social control, the more important thesubsequent legal process becomes. Legal actors--prosecutors, judges, anddefense attorneys--have the power and opportunity to moderate, modify,or resist decisions made by a less-regulated police authority. This isin essence what the Bronx and Brooldyn District Attorneys did when theysystematically declined to prosecute trespass and marijuana arrests.(251) The potentially salutary effects of such decisions, and a robustlegal apparatus generally, are especially important in the face ofinegalitarian policing practices such as broken windows.

Conversely, these legal checks and balances are integral to theSupreme Court's decision to leave policing itself relativelyunderregulated. Because of the diverse and hard-to-control nature ofpolicing, criminal procedure relies heavily on the more formalpostarrest legal apparatus to ensure legitimate postpolicing criminaloutcomes. As the Court cautioned in Terry v. Ohio, "[W]e [must be]mindful of the limitations of the judicial function in controlling themyriad daily situations in which policemen and citizens confront eachother on the street." (252) That judicial function is better suitedto regulate legal processes, which check policing excesses indirectly.As Darryl Brown put it, "Strong regulation of adjudication permitsweak rule-based investigative regulation because, as the Supreme Courtrepeatedly implies in its criminal procedure decisions, we believe thatadjudication checks investigation." (253) This means that erosionsof rule-of-law norms in misdemeanor legal processing are especiallyworrisome because that system is the infrastructure responsible formanaging some of the most problematic forms of policing. Homicide arrestpractices have many flaws, but today we rarely worry that they are merepretexts for discriminatory social and racial control. (254) But as manyscholars have pointed out, quality-of-life arrests are only weakly tiedto crime control even as they are suffused with race- and wealth-basedbiases. (255) Many of them are made without probable cause. (256)Misdemeanor arrests thus demand special skepticism and scrutiny fromlegal actors.

Put differently, a strong demarcating line between policing andprosecution protects individual liberty and the integrity of the legalprocess in ways that are democratically crucial. For the individualfacing the state, that line marks the boundary between being an arresteeand a defendant, between being hassled by police and potentiallysustaining a life-long criminal conviction. (257) Constitutionallyspeaking, the move from policing to prosecution represents theinitiation of the adversarial process itself, triggering the right tocounsel, due process, and many other dignitary protections. (258) Whenprosecutors and judges relax their vigilance around that line--forexample, by failing to engage in robust screening and legal scrutiny ofpolice decisions--they weaken basic institutional protections againstthe stratifying police state. From this perspective, misdemeanor docketmanagement is not merely about clearing cases; it is a normative legalproject of the highest order.

B. Managerial Injustices

In New York, the machinations of the misdemeanor process have beendemocratically volatile for over a decade, as the system's racialand class inequalities have triggered scrutiny and anger. In 2012, U.S.District Judge Scheindlin concluded that police practices associatedwith broken windows were intentionally racially discriminatory andviolated the Equal Protection Clause. (259) That same year, thousands ofNew Yorkers marched silently down Fifth Avenue to protest stop andfrisk. (260) The outrage of the Black Lives Matter movement was stokedin 2014 when a police officer killed Eric Garner while arresting him forthe extraordinarily minor offense of selling loose cigarettes. (261) In2017, Politico reported that white New Yorkers receive more lenientsentences for marijuana possession than African Americans and Latinosdo. (262) The New York Police Department is currently being sued torelease data regarding its arrests for turnstile jumping in the subwaysystem--arrests that are disproportionately aimed at people of color.(263)

The procedural dysfunctions of the misdemeanor system have alsotriggered public resistance. Court watchers now sit in lower courts andreport their activities. (264) Community bail funds in Brooklyn, Queens,and the Bronx have put up the money to release thousands of low-leveldefendants, effectively countering judicial decisions that would haveresulted in detention. (265) The Bronx Criminal Court entered into asettlement in 2018 after the Bronx Defenders sued it for delays in itsmisdemeanor dockets. (266) And the political machinery has responded atthe highest levels. When Mayor Bill de Blasio was first elected in 2013,one of his campaign promises was to curtail oppressivemisdemeanor-policing practices. In 2017, his administration rolled outsubstantial reforms of the summonses system. (267) In all these ways,the New York debate understands low-level criminal institutions ashighly contested sites of race, poverty, and democratic accountability.

Misdemeanorland begins and ends in a similarly critical register bylamenting the inequitable impact of misdemeanor enforcement on NewYork's poor people of color and the "role [of the criminalsystem] in reproducing class and racial inequality in the UnitedStates." (268) The "tremendous" costs of policing falldisproportionately on "people living in conditions of 'socialinsecurity and marginality.'" (269) Kohler-Hausmann explains:

The residents inside these communities are the ones who come to havecriminal records..., endure the degradation of arrest and prosecution,lose days of work and child care, and face interminable demands ....They increasingly feel disrespected and oppressed by a police presencedesignated for their safety and demeaned by a legal system designed todole out justice. (270)

"Ultimately," Kohler-Hausmann writes in conclusion,"this book points to moral commitments we hold about the dignitydue to those in our social community who have been accused--or evenconvicted of--violating laws." (271) Acknowledging "the veryreal social problems that gave rise to and sustain commitment to theBroken Windows policing model," she argues that "[t]hoseissues cannot be remedied by legal reforms that target judicialpractice. They can only be addressed by a larger transformativeproject." (272)

Misdemeanorland clearly identifies the social inequities and racialimbalances of the New York misdemeanor system. But it is less clearabout whether managerial justice is to blame, and thus how managerialismshould be normatively evaluated at the end of the day. "Is thereanything wrong with what I have described about misdemeanorland?"Kohler-Hausmann asks rhetorically. (273) The book closes on a balancednote by observing that, on the one hand,

[m]any readers may [be] deeply disturbed by the account ofmisdemeanorland documented here, shocked that criminal courts chargedwith adjudicating guilt and innocence and protecting constitutionalrights rarely do so, and disillusioned that these courts instead usethe tools of criminal procedure to manage and control multitudes of thecity's most disadvantaged populations. (274)

On the other hand,

[o]thers might be heartened that New York City's misdemeanor courts areworking so well. Flooded with substantial volumes of subfelony caseswithout a concurrent increase in court resources, one could see themanagerial model as an efficient adaptation to the conditions generatedby Broken Windows policing .... One might conclude that misdemeanorlandcourt actors... innovated not only a brilliantly efficient response toaccusations of low-level offending, but also an inherently just one.... [P]erhaps what we ought to do with minor crimes is not necessarilypunish the act, but rather assess the person over time to see if hepersistently disregards rules. (275)

Kohler-Hausmann thinks both are "simultaneously true":"I concur with both assessments in some respects," sheconcludes. (276)

In this regard, Misdemeanorland understates its own implicitcritique of managerial justice. The book sounds the alarm that "theoperations of misdemeanorland... function[] to either reproduce race andclass inequality or manage the effects of class and racial inequality ina punitive fashion." (277) It points out that the "presumptionof need for social control... arises from the social standing of thepeople subject to its power." (278) In effect, this is a claim thatthe presumption driving managerialism is inherently racist and classist,aimed as it is at "the entire category of people who are targetedby Broken Windows policing... namely, low-income men of color, [who]become a population with an ongoing burden to prove governability inlower criminal courts." (279) Put differently, managerial justiceonly happens to disadvantaged classes of people whom legal officialsconsider to be the sorts of people who need to be managed. It isprecisely because legal officials think there is "profounduncertainty about what type of person" (280) misdemeanor defendantsare, and "that these populations are inherently disorderly and mustaffirmatively prove their fitness for freedom," (281) that marking,hassle, and performance seem like "reasonable" or"practical" policies. (282) Prosecutors and judges believethey already know what type of person a wealthy, white, employeddefendant is: there is only uncertainty, and therefore the need forongoing managerial control, in the face of class and racialdisadvantage.

Such biases are on display in the ways that the managerial modeldesignates misdemeanor criminals in the first place. As Misdemeanorlanddocuments, misdemeanor charges and convictions are remotely related, atbest, to actual criminal, culpable conduct. It is the process itselfthat selects people based on criminalizing presumptions regardingpoverty, race, and neighborhood, and then turns those people intorecognizable, documented criminals based heavily on their court-relatedperformances. Misdemeanorland actively creates and constructs its ownsubjects: "Defendants come to be the type of person who ought to beconvicted by achieving a certain status in misdemeanorland, a statusthat is only to varying degrees achieved by establishing violations ofspecific provisions of the penal law." (283) People who emerge frommisdemeanorland formally marked as criminals do so not because they arenecessarily guilty or culpable, but because they are the types of peoplewhom the process treats as criminal. (284)

In these ways, Misdemeanorland shows how managerial social control,with its inattention to law, evidence, and guilt, embodies the demandthat poor people of color constantly account for themselves. The demandis prior to any actual proof of criminality--a reversal made possibleprecisely by the erosion of the adjudicative model. It arises frompresumptions about race, class, and neighborhood, which are thenoperationalized and validated first through policing practices and thenthrough the legal misdemeanor process. (285) Because those initialpolice selection decisions are heavily biased, Kohler-Hausmann concludesthat inequities would persist "even if the criminal courtsimpartially apply the managerial model to all defendants irrespective ofclass, race, or immigration status." (286) But her own accountindicates that the managerial model is not so impartial. There is noneed for a managerial approach to the socially privileged because thereis no uncertainty about their governability and thus no need for theassessment. The book thus reveals the managerial assessment itself to bebiased, disrespectful, and punitive.

Such insights about the normative skew of managerialism areilluminating for the entire misdemeanor debate. Disrespectfulpresumptions about the disadvantaged are a powerful force in themisdemeanor universe--they lie behind the many erosions of substantivelaw and constitutional rights, the wholesale conversion of misdemeanordefendants into revenue sources in numerous jurisdictions, and thegeneral lack of respect for the rule of law that permeates low-levelcriminal processes. These phenomena reflect political and socialpowerlessness; the system would not tolerate such debased treatment ofpeople with greater economic or social authority. They suggest that,going forward, the misdemeanor system should be understood broadly andcritically not only as a criminal justice institution, but as an engineof social and political inequality. (287)

CONCLUSION: THE LENIENCY FALLACY

As the United States grapples with the punitive brutality ofdecades of mass incarceration, (288) it is tempting to view misdemeanorsas lenient alternatives to felony punishment. But Misdemeanorland offerspersuasive evidence that misdemeanor justice in general, and managerialjustice in particular, is not lenient. It may not result in formal jailsentences or criminal convictions as often as it might, but it embodiesa profoundly suspicious, disrespectful, punitive stance towards itsdisadvantaged subjects. Because many of the burdens associated with themisdemeanor experience do not count doctrinally as"punishment," they have escaped the kinds of legal constraintsand scholarly scrutiny accorded incarceration and other formalsentencing measures. But the misdemeanor-punishment problem cannot besolved through formalism. To be sure, the Supreme Court often thinks itcan. (289) But crushing debt, job loss, and housing displacement aredegrading, burdensome, and stratifying even though they are regarded ascivil in nature. As Misdemeanorland demonstrates, marking, proceduralhassle, and performance requirements are functionally punitive eventhough they do not always legally constitute punishment. Fullyappreciated, the burdens of a misdemeanor encounter, including itsmanagerial aspects, represent a heavy-handed exercise of the punitive,coercive power of the state. (290) This is especially true where thatassertion of state power so openly produces and exacerbates socialinequality along democratically suspect lines of wealth andrace--stratification is part and parcel of the punitive exercise. (291)

As have many American jurisdictions, New York invested an enormousamount of time, resources, and money into expanding the net ofcriminalization through which to exert control over the poor, especiallypoor residents of color. Turbocharged by broken-windows policing, thesepolicies and practices extended the potential reach of the criminalprocess deep into the lives and communities of African Americans andLatinos. In response, prosecutors and judges accommodated andcompromised with the basic social-control premise. It would be a mistaketo draw from Misdemeanorland the normative conclusion that thisaccommodation was lenient simply because the system could haveincarcerated and convicted at higher rates. When the state intentionallycreates the overcriminalizing conditions under which it could punishmany more people more harshly, it should not get credit for beinglenient merely because it does not take full advantage.

The leniency fallacy infects much of the petty-offense discourseand culture. It probably accounts for much of the relative invisibilityof misdemeanors within the great debates over the excesses of Americancriminalization. And some of that is fair enough. The average felonysentence in the United States is four years in prison, an objectivelyheavier and more painful experience than the typical misdemeanorsentence of probation and a fine. (292) Multidecade drug sentences,prison overcrowding, and solitary confinement do indeed make misdemeanorpunishments look petty by comparison. But mass incarceration has numbedus to the heavy-handedness of the misdemeanor experience and theintrusiveness of managerialism. Millions of people nationwide are losingtheir liberty, money, time, credit, jobs, housing, dignity, andself-esteem. Among its many contributions, Misdemeanorland shows justhow deeply punitive this massive misdemeanor apparatus has become.

(1.) Editorial, Ending Cash-Register Justice, N.Y. TIMES, (Oct. 17,2017), https://www.nytimes.com/2017/10/17/opinion/ending-cash-register-justice.html [https://perma.cc/7YNH-A5V8J.

(2.) End Broken Windows Policing, CAMPAIGN ZERO,https://www.joincampaignzero.org/brokenwindows[https://perma.cc/ZSM9-82U4] (arguing for the elimination ordeprioritization of offenses including "Consumption of Alcohol onStreets, Marijuana Possession, Disorderly Conduct, Trespassing,Loitering, Disturbing the Peace [including Loud Music], Spitting,Jaywalking, [and] Bicycling on the Sidewalk"); see also Devon W.Carbado, Predatory Policing, 85 UMKC L. REV. 545, 549-51 (2017)(identifying low-level misdemeanor policing as a source of systemicracism).

(3.) Frances Robles & Julie Bosman, Autopsy Shows Michael BrownWas Struck at Least 6 Times, N.Y. TIMES (Aug. 17, 2014),https://www.nytimes.com/2014/08/18/us/michael-brown-autopsy-shows-he-was-shot-at-least-6-times.html [https://perma.cc/YBR7-MMGK].

(4.) Protecting the Constitutional Right to Counsel for IndigentsCharged with Misdemeanors: Hearing Before the S. Comm. on the Judiciary,114th Cong. (2015) (statement of Sen. Chuck Grassley, Chairman, S. Comm.on the Judiciary) [hereinafter Grassley Statement]; see also AndrewCohen, A New Conservative Approach to Justice: Serve the Poor, MARSHALLPROJECT (May 12, 2015),https://www.themarshallproject.org/2015/05/12/a-new-conservative-approach-to-justice-serve-the-poor [https://perma.cc/6BK2-QF4T](contextualizing the Senate Judiciary Committee hearing within broaderconservative support for devoting more resources to appointed counsel inmisdemeanor cases).

(5.) ALEXANDRA NATAPOFF, PUNISHMENT WITHOUT CRIME: How OUR MASSIVEMISDEMEANOR SYSTEM TRAPS THE INNOCENT AND MAKES AMERICA MORE UNEQUAL40-41 (2018).

(6.) Id.

(7.) ISSA KOHLER-HAUSMANN, MISDEMEANORLAND: CRIMINAL COURTS ANDSOCIAL CONTROL IN AN AGE OF BROKEN WINDOWS POLICING (2018); NATAPOFF,supra note 5.

(8.) MALCOLM M. FEELEY, THE PROCESS Is THE PUNISHMENT : FIANDLINGCASES IN A LOWER CRIMINAL COURT (paperback ed. 1992).

(9.) Misdemeanor Machinery: The Hidden Heart of the AmericanCriminal Justice System, B.U. SCH. L.,https://www.bu.edu/law/2017/09/15/rnisdemeanor-machinery-the-hidden-core-of-the-american-criminal-justice-system [https://perma.cc/K8SH-N887].

(10.) Shima Baradaran Baughman, The History of Misdemeanor Bail, 98B.U. L. REV. 837 (2018); Greg Berman & Julian Adler, TowardMisdemeanor Justice: Lessons from New York City, 98 B.U. L. REV. 981(2018); Jenn Rolnick Borchetta, Curbing Collateral Punishment in the BigData Age: How Lawyers and Advocates Can Use Criminal Record SealingStatutes to Protect Privacy and the Presumption of Innocence, 98 B.U. L.REV. 915 (2018); Malcolm M. Feeley, How to Think About Criminal CourtReform, 98 B.U. L. REV. 673 (2018); Samuel R. Gross, Errors inMisdemeanor Adjudication, 98 B.U. L. REV. 999 (2018); Eisha Jain,Proportionality and Other Misdemeanor Myths, 98 B.U. L. REV. 953 (2018);Irene Oritseweyinmi Joe, The Prosecutor's Client Problem, 98 B.U.L. REV. 885 (2018); Jenny Roberts, The Innocence Movement andMisdemeanors, 98 B.U. L. REV. 779 (2018); Megan Stevenson & SandraMayson, The Scale of Misdemeanor Justice, 98 B.U. L. REV. 731 (2018).

(11.) Carlos Berdejo, Criminalizing Race: Racial Disparities inPlea-Bargaining, 59 B.C. L. REV. 1187 (2018); Beth A. Colgan, TheExcessive Fines Clause: Challenging the Modern Debtors' Prison, 65UCLA L. REV. 2 (2018) (arguing that common forms of economic sanctionconstitute fines for the purpose of the Eighth Amendment); Eisha Jain,Capitalizing on Criminal Justice, 67 DUKE L.J. 1381, 1381 (2018)(asserting "that the reach of the criminal justice system is notjust the product of overly punitive laws, but also the product ofinstitutions capitalizing on criminal law decisions for their ownends"); Zina Makar, Displacing Due Process, 67 DEPAUL L. REV.425,425 (2018) (arguing that "procedural protections have beenunjustly reserved for the trial stage based on the unrealisticassumption that a trial will be guaranteed"); see also CarlosBerdejo, Gender Disparities in Plea Bargaining, 94 IND. L.J.(forthcoming 2019).

(12.) Brandon Buskey & Lauren Sudeall Lucas, KeepingGideon's Promise: Using Equal Protection to Address the Denial ofCounsel in Misdemeanor Cases, 85 FORDHAM L. REV. 2299 (2017); PaulHeatonetal., The Downstream Consequences of Misdemeanor PretrialDetention, 69 STAN. L. REV. 711 (2017); Irene Oritseweyinmi Joe,Rethinking Misdemeanor Neglect, 64 UCLA L. REV. 738 (2017); AlexandraNatapoff, A Stop Is Just a Stop: Terry's Formalism, 15 OHIO ST. J.CRIM. L. 113 (2017); Henry Ordower et al., Out of Ferguson:Misdemeanors, Municipal Courts, Tax Distribution, and ConstitutionalLimitations, 61 How. L.J. 113 (2017); Jenny Roberts, InformedMisdemeanor Sentencing, 46 HOFSTRA L. REV. 171 (2017); Jessica A. Roth,The Culture of Misdemeanor Courts, 46 HOFSTRAL. REV. 215 (2017); JocelynSimonson, Bail Nullification, 115 MICH. L. REV. 585 (2017); Crystal S.Yang, Toward an Optimal Bail System, 92 N.Y.U. L. REV. 1399 (2017). A2017 symposium at Hofstra published a total of ten misdemeanor-relatedarticles. Symposium, Judicial Responsibility for Justice in CriminalCourts, 46 HOFSTRA L. REV. 1 (2017).

(13.) I have argued for this kind of sustained attention tomisdemeanors since 2012. Alexandra Na-tapoff, Misdemeanors, 85 S. CAL.L. REV. 1313 (2012) [hereinafter Natapoff, Misdemeanors]; see also,e.g., Alexandra Natapoff, The Penal Pyramid, in THE NEW CRIMINAL JUSTICETHINKING 71, 71-92 (Sharon Dolovich & Alexandra Natapoff eds., 2017)[hereinafter Natapoff, The Penal Pyramid] (theorizing the erosion ofrule of law at the bottom of the penal pyramid, where offenses arepettiest); Alexandra Natapoff, Aggregation and Urban Misdemeanors, 40FORD HAM URB.L.J. 1043 (2013) [hereinafter Natapoff, Aggregation andUrban Misdemeanors] (discussing the erosion of the individual-faultmodel in misdemeanor processing); Alexandra Natapoff, Gideon Skepticism,70 WASH. &LEEL. REV. 1049 (2013) [hereinafter Natapoff, GideonSkepticism] (discussing structural barriers to effective misdemeanorrepresentation); Alexandra Natapoff Gideon's Servants and theCriminalization of Poverty, 12 OHIO ST. J. CRIM. L. 445 (2015)[hereinafter Natapoff, Gideon's Servants] (discussing thewelfarization of crime around petty offenses); Alexandra Natapoff,Misdemeanor Decriminalization, 68 VAND. L. REV. 1055 (2015) (discussingthe inegalitarian effects of decriminalization).

(14.) KOHLER-HAUSMANN, supra note 7, at 42; see also id. at 124(noting that between 115,000 and 200,000 subfelony cases are resolvedannually at arraignment).

(15.) Id. at 5.

(16.) Id. at 4; see also id. at 61 (defining the adjudicative modelas one in which "the role of court actors is to adjudicate thefactual guilt or innocence of a defendant in a particular case");id. at 72 (further describing the adjudicative model).

(17.) Id. at 5.

(18.) Id. at 199 (describing criminal justice actors as willing toaccept managerial justice "in lieu of formal punishment"); id.at 74 (asserting that managerial practices "illustrate a[prosecutorial] sentiment that it is morally unnecessary for the heavymachinery of criminal justice to come down on every defendant accused ofa low-level offense if the person can prove himself to be responsibleand governable"); id. at 266 ("The moral principle at work inthe managerial model [is] that we essentially don't seek anypunishment at all unless the person demonstrates a persistent disregardfor social rules and otherwise seems unmoored from other institutions ofsocial control....").

(19.) Id. at 53; see also Issa Kohler-Hausmann, Managerial Justiceand Mass Misdemeanors, 66 STAN. L. REV. 611, 627 (2014) ("[Themanagerial model] operates on the basis of a presumption of need forsocial control over the population brought into misdemeanorcourt.").

(20.) KOHLER-HAUSMANN, supra note 7, at 51-53.

(21.) Id. at 4 (claiming that misdemeanor courts in New York City"have largely abandoned" the adjudicative model); id. at 10(same).

(22.) Jenny Roberts, Why Misdemeanors Matter: Defining EffectiveAdvocacy in the Lower Criminal Courts, 45 U.C. DAVIS L. REV. 277,288,364 (2011).

(23.) Id. at 371; see also NATAPOFF, supra note 5, at 19-38(describing the far-reaching impact of misdemeanor encounters); K. BabeHowell, Broken Lives from Broken Windows: The Hidden Costs of AggressiveOrder-Maintenance Policing, 33 N.Y.U. REV. L. & SOC. CHANGE 271,300-07 (2009) (describing the punitive impact of encounters with the NewYork misdemeanor system).

(24.) Eisha Jain, Arrests as Regulation, 67 STAN. L. REV. 809, 815(2015); see Anna Roberts, Arrests as Guilt, 60 ALA. L. REV. (forthcoming2019).

(25.) KOHLER-HAUSMANN, supra note 7, at 224 (comparing themisdemeanor process to welfare offices); see Natapoff, Gideon'sServants, supra note 13, at 450-53 (describing resonances between thewelfare state and the petty-offense process).

(26.) FRANCES Fox PPVEN & RICHARD A. CLOWARD, REGULATING THEPOOR: THE FUNCTIONS OF PUBLIC WELFARE 371 (2d Vintage ed. 1993) (1971).

(27.) LOIC WACQUANT, PUNISHING THE POOR: THE NEOLIBERAL GOVERNMENTOF SOCIAL INSECURITY 41 (2009); see also ELIZABETH HINTON, FROM THE WARON POVERTY TO THE WAR ON CRIME: THE MAKING OF MASS INCARCERATION INAMERICA (2016) (describing how the welfare programs of LyndonJohnson's Great Society morphed into the criminal justice apparatusof mass incarceration).

(28.) KAARYN S. GUSTAFSON, CHEATING WELFARE: PUBLIC ASSISTANCE ANDTHE CRIMINALIZATION OF POVERTY 51-68 (2011).

(29.) Armando Lara-Millan, Public Emergency Room Overcrowding inthe Era of Mass Imprisonment, 79 AM. Soc. REV. 866, 880 (2014); see alsoMichele Goodwin, Prosecuting the Womb, 76 GEO. WASH. L. REV. 1657,1676-77 (2008) ("[I]n exchange for prenatal treatment atgovernment-funded hospitals, pregnant women should assume that bloodtests, urine samples, and other medical information will be divulged topolice and prosecutors at the whim of doctors and nurses expressly forthe purpose of punishing pregnant women for the ways in which theybehave.").

(30.) FORREST STUART, DOWN, OUT, AND UNDER ARREST: POLICING ANDEVERYDAY LIFE IN SKID Row 4,13, 81 (2016).

(31.) Caleb Foote, Vagrancy-Type Law and Its Administration, 104 U.PA. L. REV. 603, 613 (1956).

(32.) FEELEY, supra note 8, at xxii.

(33.) See JOHN IRWIN, THE JAIL: MANAGING THE UNDERCLASS IN AMERICANSOCIETY 9-10 (1985).

(34.) Id. at 2.

(35.) KOHLER-FIAUSMANN, supra note 7, at 15 (describing New YorkCity's misdemeanor courts as "simultaneously interesting andatypical").

(36.) See NATAPOFF, supra note 5, at 256-58 tbl.A.i (listing tenstates with nonunified court systems).

(37.) Telephone Interview with "Laura" (no last name),Official, Me. Admin. Office of the Court (Dec. 16, 2016).

(38.) BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, NCJ205334, REPORTING BY PROSECUTORS' OFFICES TO REPOSITORIES OFCRIMINAL HISTORY RECORDS (2005),https://bjs.gov/content/pub/pdf/rporchr.pdf [https://perma.cc/PJU9-3SPS]("When prosecutors report final disposition information torepositories, half of them report misdemeanor convictions, misdemeanoracquittals, or indictments.").

(39.) NATAPOFF, supra note 5, at 256-58 tbl.A.i & nn.6, 8, 34,37, 39, 41, 46, 54, 56 (documenting states that lack unified courtsystems and the extent to which their municipal courts report caseloadsto the AOC).

(40.) KATHERINE BECKETT & STEVE HERBERT, BANISHED: THE NEWSOCIAL CONTROL IN URBAN AMERICA 85-92 (2009); Abdallah Fayyad, TheCriminalization of Gentrifying Neighborhoods, ATLANTIC (Dec. 20, 2017),https://www.theatlantic.com/politics/archive/2017/12/the-criminalization-of-gentrifying-neighborhoods/548837/ [https://perma.cc/V6DU-XPTP].

(41.) Natapoff, Gideon's Servants, supra note 13, at 454-55(describing various community courts and services).

(42.) Civil Rights Div., Investigation of the Ferguson PoliceDepartment, U.S. DEP'T JUST. 2 (Mar. 4, 2015),https://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf[https://perma.cc/K35Y-MFWL].

(43.) David Koon, "Million-Dollar Thursday": A Visit toSherwood's Hot Check Court, ARK. TIMES: ARK. BLOG (Aug. 25, 2016,2:40 PM), https://www.arktimes.com/ArkansasBlog/archives/2016/08/25/million-dollar-thursday-a-visit-to-sherwoods-hot-check-court[https://perma.cc/T8SB-ZSFF].

(44.) Mark Flatten, City Courts: Money, Pressure and Politics MakeIt Tough to Beat the Rap, GOLDWATER INST. 9 (2017),https://goldwaterinstitute.org/wp-content/uploads/2017/09/City-Court-Policy-Paper-1.pdf [https://perma.cc/78G7-QQNX] ("Arizona cities . ..typically raise less than 5 percent of their general fund revenuethrough the courts.").

(45.) I have explored the stratifying erosion of rule of law withinthe misdemeanor process in detail. See Natapoff, The Penal Pyramid,supra note 13, at 71-92.

(46.) FEELEY, supra note 8, at 10-13.

(47.) Alisa Smith & Sean Maddan, Three Minute Justice: Hasteand Waste in Florida's Misdemeanor Courts, NAT'L ASS'NCRIM. DEF. LAW. 15, 22 (July 2011),https://www.nacdl.org/WorkArea/DownloadAsset.aspx?id=20794[https://perma.cc/CQ5H-4ZMB].

(48.) Robert C. Boruchowitz et al., Minor Crimes, Massive Waste:The Terrible Toll of America's Broken Misdemeanor Courts,NAT'L ASS'N CRIM. DEF. LAW. (Apr. 2009),https://www.opensocietyfoundations.org/sites/default/files/misdemeanor_20090401.pdf [https://perma.cc/MXG3-H9UN].

(49.) High-volume federal immigration dockets often permit speedyprocessing and mass guilty pleas in ways that strongly resemble the mostinformal misdemeanor courts. See, e.g., United States v. Diaz-Ramirez,646 F.3d 653 (9th Cir. 2011) (upholding a mass immigration plea processunder Operation Streamline); see also Joanna Lydgate, Assembly-LineJustice: A Review of Operation Streamline, CHIEF JUST. EARL WARREN INST,ON RACE, ETHNICITY & DIVERSITY (Jan. 2010),https://www.law.berkeley.edu/files/Operation_Streamline_Policy_Brief.pdf[https://perma.cc/7GES-M457] (describing mass pleas of as many as eightydefendants at a time). I am indebted to Mona Lynch for this point.

(50.) Argersinger v. Hamlin, 407 U.S. 25, 34 (1972).

(51.) Andrew Horwitz, Taking the Cop out of Copping a Plea:Eradicating Police Prosecution of Criminal Cases, 40 ARIZ. L. REV. 1305(1998) (documenting fourteen states that permit police prosecutions,including Delaware, Iowa, Maine, Massachusetts, Minnesota, NewHampshire, New Jersey, New Mexico, New York, Pennsylvania, Rhode Island,South Carolina, Vermont, and Virginia); see also Diane DePietropaoloPrice, Summary Injustice: A Look at Constitutional Deficiencies in SouthCarolina's Summary Courts, NAT'L ASS'N CRIM. DEF. LAW. 19(2016), https://www.nacdl.org/WorkArea/DownloadAsset.aspx?id=4i2i6&libID=4ii86 [https://perma.cc/UUoF-ZYEF] (noting that, with the exceptionof one county, "89% of defendants were processed in courts withouta single lawyer involved").

(52.) North v. Russell, 427 U.S. 328 (1976) (upholding theconstitutionality of lay judges in police court when a de novo trial isavailable later).

(53.) Alisa Smith et al., Rush to Judgment: Hoiv SouthCarolina's Summary Courts Fail to Protect Constitutional Rights,NAT'L ASS'N CRIM. DEF. LAW. 16 (2017),https://www.nacdl.org/RushToTudgement [https://perma.cc/D2VL-MTNM](documenting police prosecutions in South Carolina summary courts).

(54.) Boruchowitz et al., supra note 48, at 23 (describing thefacts of Ohio v. Jones, Case No. 2008-P-0018 (Ohio Ct. App. Dec. 31,2008)); see also Richard A. Oppel Jr., His Clients Weren'tComplaining. But the Judge Said This Lawyer Worked Too Hard., N.Y. TIMES(Mar. 29, 2018), https://www.nytimes.com/2018/03/29/us/indigent-defense-lawyer-texas.html [https://perma.cc/7Z6B-Q22Y] (describing a federallawsuit alleging that a Texas judge retaliated against an appointeddefense lawyer for "overwork[ing] cases" by requesting paidinvestigators and spending longer than three hours on clients who pledguilty).

(55.) Eve Brensike Primus, Our Broken Misdemeanor Justice System:Its Problems and Some Potential Solutions, 85 S. CAL. L. REV. POSTSCRIPT80,81 (2012).

(56.) Kendall Taggart & Alex Campbell, In Texas It's aCrime to Be Poor, BUZZFEED (Oct. 7, 2017,5:21 PM),https://www.buzzfeed.com/kendalltaggart/in-texas-its-a-crime-to-be-poor[https://perma.cc/529Q-PBEN].

(57.) Josh Bowers, Grassroots Plea Bargaining, 91 MARQ. L. REV. 85,85 & n.3 (2007).

(58.) Alexandra Natapoff, Negotiating Accuracy: DNA in the Age ofPlea Bargaining, in WRONGFUL CONVICTIONS AND THE DNA REVOLUTION:TWENTY-FIVE YEARS OF FREEING THE INNOCENT 85, 94-96 (Daniel S. Medweded., 2017).

(59.) Natapoff, Misdemeanors, supra note 13, at 1317, 1366-68.

(60.) NATAPOFF, supra note 5, at 53-54 (documenting thedisadvantaged status of much of the misdemeanor population).

(61.) The War on Marijuana in Black and White, ACLU 4 (June 2013),https://www.aclu.org/sites/default/nles/field_document/iii44i3-mj-report-rfs-reli.pdf [https://perma.cc/S5TF-V35S].

(62.) Civil Rights Div., supra note 42, at 4 (concluding that theFerguson Police Department "appears to bring certain offensesalmost exclusively against African Americans").

(63.) Civil Rights Div., Investigation of the Baltimore City PoliceDepartment, U.S. DEP'T JUST. 7-8, 55-56 (2016),https://www.justice.gov/crt/file/883296/download[https://perma.cc/BU3V-AS6Y].

(64.) Neb. Admin. Office of the Courts, Defendant Characteristicsby Race and Gender, Nebraska District and County Courts (unpublishedreport) (on file with author) (finding, in 2015, 15,288 cases filedagainst black defendants out of 80,170 total cases documented);OuickFacts Nebraska, U.S. CENSUS BUREAU,https://www.census.gov/quickfacts/fact/table/ne/RHI225217[https://perma.cc/VY7V-2EEP] (listing Nebraska demographic data forAfrican Americans).

(65.) See Richard A. Bierschbach & Stephanos Bibas, RationingCriminal Justice, 116 MICH. L. REV. 187,190-91 (2017) (discussing thegeneral lack of internalized costs in criminal decision-making).

(66.) Natapoff, Misdemeanors, supra note 13, at 1371-72; see alsoNatapoff, Aggregation and Urban Misdemeanors, supra note 13, at 1045-46(describing troubling features of the urban misdemeanor process).

(67.) See supra notes 10-13.

(68.) See Bernard E. Harcourt & Jens Ludwig, Broken Windows:New Evidence from New York City and a Five-City Social Experiment, 73 U.CHI. L. REV. 271, 272 (2006).

(69.) KOHLER-HAUSMANN, supra note 7, at 42.

(70.) Id. at 107-08.

(71.) Id. at 51; QjuckFacts New York City, New York, U.S. CENSUSBUREAU (July 1, 2018),https://www.census.gov/quickfacts/newyorkcitynewyork[https://perma.cc/83XB-YDJ4]; see also KOHLER-HAUSMANN, supra note 7, at53 ("[M]isdemeanor arrests have been overwhelmingly concentrated inprecincts that have 60 percent or more black or Hispanicpopulation.").

(72.) See KOHLER-HAUSMANN, supra note 7, at 43-45 (describing thesources of decline).

(73.) See, e.g., BERNARD E. HARCOURT, ILLUSION OF ORDER: THE FALSEPROMISE OF BROKEN WINDOWS POLICING 8-11, 59-61, 80-82 (2001); Jeffreyfa*gan & Garth Davies, Street Stops and Broken Windows: Terry, Race,and Disorder in New York City, 28 FORDHAM URB. L.J. 457, 465-67 (2000);Robert J. Sampson & Stephen W. Raudenbush, Systematic SocialObservations of Public Spaces: A New Look at Disorder in UrbanNeighborhoods, 105 AM. J. Soc. 603, 637-38 (1999); Robert J. Sampson& Stephen W. Raudenbush, Disorderin Urban Neighborhoods--Does ItLead to Crime?, NAT'L INST. JUST. 4-5 (Feb. 2001),https://www.ncjrs.gov/pdrBles1/nij/186049.pdf[https://perma.cc/QTY7-SCUN] ("The forces that generate disorderalso generate crime. It is the structural characteristics ofneighborhoods, as well as neighborhood cohesion and informal socialcontrol--not levels of disorder--that most affect crime.").

(74.) FlARCOURT, supra note 73, at 7.

(75.) KOHLER-FLAUSMANN, supra note 7, at 4, 61.

(76.) Id. at 71.

(77.) Id. at 72.

(78.) Id. at 4; see also id. at 10 ("[T]he city'smisdemeanor courts have largely abandoned the adjudicative model ofcriminal law administration and instead operate under the managerialmodel."). But see id. at 93 ("These results do not prove thatthe adjudicative model has been thoroughly vanquished frommisdemeanorland, nor is it my claim that it has been.").

(79.) Id. at 105.

(80.) Id. at 85.

(81.) Id. at 21; see also id. at 101 ("Frontline legal actorsand managers .. . had to engage in creative problem solving in the faceof the practical circ*mstances generated by Broken Windows policing").

(82.) Id. at 58.

(83.) Id. at 81.

(84.) Id. at 258.

(85.) Id. at 116-19 (discussing the management of prosecutorial andjudicial dockets).

(86.) Id. at 74.

(87.) Id. at 199.

(88.) Id. at 73.

(89.) Id. at 266.

(90.) See id. at 146.

(91.) See id. at 150.

(92.) Id. at 150. These dismissals are referred to as"30.30" because they are authorized by section 30.30 of NewYork Criminal Procedure Law.

(93.) Id. An ACD lasts up to six months; an MJACD is a marijuanaACD and it lasts up to a year. Id.

(94.) Id. at 68-69.

(95.) Id. at 114 fig.3.4 (charting miniscule trial rates of lessthan one percent).

(96.) Id. at 124, 162 (explaining that at broken-windowspolicing's peak two-thirds of cases were resolved at arraignment,with the figure more recently decreasing to fifty-five percent); seealso Boruchowitz et al., supra note 48, at 31 (documenting high plearates at arraignment in New York).

(97.) KOHLER-HAUSMANN, supra note 7, at 195. Suppressionhearings--the defendant's opportunity to exclude illegally obtainedevidence--are also almost nonexistent. Id. at 116-17.

(98.) Id. at 120-21 (describing official prosecutorial plea-offerguidelines).

(99.) Id. at 125.

(100.) Argersinger v. Hamlin, 407 U.S. 25, 34-36 (1972) (describingthe speed, large numbers of cases, and lack of due processcharacteristic of misdemeanor courts as a kind of "assembly-linejustice"); KOHLER-HAUSMANN, supra note 7, at 60, 63, 66 & n.23(citing various scholarship, including mine, for the proposition that"the assembly-line justice critique has reemerged").

(101.) FEELEY, supra note 8, at 13,187; KOHLER-HAUSMANN, supra note7, at 65 ("Feeley is one of the few observers of lower criminalcourts to challenge the assembly-line metaphor as inapt.").

(102.) Boruchowitz et al., supra note 48, at 30 (comparing themisdemeanor process to cattle herding); id. at 33 (describing the"meet and plead" misdemeanor process); Jenny Roberts, WhyMisdemeanors Matter: Defining Effective Advocacy in the Lower CriminalCourts, 45 U.C. DAVIS L. REV. 277, 370 (2011) (calling the misdemeanorprocess "McJustice").

(103.) Cf. KOHLER-HAUSMANN, supra note 7, at 60 ("[O]ne of themost common allegations levied at lower criminal courts by higher courtsand academic commentators is that of 'assembly-linejustice'--mechanically churning out convictions and imposingone-size-fits-all punishments.").

(104.) Id. at 125.

(105.) Id. at 129.

(106.) Id. at 126.

(107.) Id. at 148.

(108.) Id. at 129.

(109.) Id. at 149.

(110.) See id. at 121 (describing prosecutorial guidelines).

(111.) Id. at 82-83.

(112.) Id. at 84.

(113.) See id. at 74 ("[O]ne of the most importantdeterminants of case dispositions is the record of a defendant'sprior criminal justice encounters...."); see also id. at 96("[T]he prior record of the defendant becomes one of the mostimportant determinants of the outcome."); id. at 166 (relatingstatement by a public defender that "innocent people withrecords" will be offered a disorderly conduct plea rather than adismissal); id. at 261 ("Defendants come to be the type of personwho ought to be convicted by achieving a certain status inmisdemeanorland, a status that is only to varying degrees achieved byestablishing violations of specific provisions of the penal law.").

(114.) Id. at 53.

(115.) Id. at 59.

(116.) Id. at 50.

(117.) Id. at 79.

(118.) Id. at 143.

(119.) Id. at 183.

(120.) Id. at 221.

(121.) Id. at 10.

(122.) See id. at 17 (describing fieldwork through 2016); id. at 19(describing data through 2011).

(123.) Id. at 143,183, 221 (quoting FRANZ KAFKA, THE TRIAL (TribecaBooks 2015) (1925)).

(124.) Id. at 266 (arguing that, at least in the abstract,managerial justice "seems like a perfectly reasonable"approach for legal officials to take); id. at 105 (describing managerialjustice as a "particularly rational adaptation to the profile ofdefendants and the resource constraints that actors face"); id. at123 (noting that in light of heavy prosecutorial caseloads and delays,"one can see how the strategies of [managerialism] emerge asrational means for achieving a measure of social control over asubstantial volume of misdemeanor defendants"); id. at 264("There is both an efficiency and fairness argument to be made forthe managerial model....").

(125.) See id. at 31-32.

(126.) See id. at 36-41.

(127.) Id. at 74.

(128.) See id. at 19 (describing Department of Criminal JusticeServices (DCJS) and numerous other official data sources). This data iswhat allows Kohler-Hausmann to dig so deeply into the specifics and mayalso account for why a disproportionate percentage of previousmisdemeanor scholarship has involved New York. See, e.g., Josh Bowers,Legal Guilt, Normative Innocence, and the Equitable Decision Not toProsecute, 110 COLUM. L. REV. 1655,1694 n.179 (2010) ("I relyprincipally on New York City misdemeanor enforcement and adjudicationdata... [in part] because the city maintains better records than mosturban jurisdictions...."); M. Chris Fabricant, War Crimes andMisdemeanors: Understanding "Zero Tolerance Policing" as aForm of Collective Punishment and Human Rights Violation, 3 DREXEL L.REV. 373 (2011); Howell, supra note 23, at 283-90; Ian Weinstein, TheAdjudication of Minor Offenses in New York City, 31 FORD HAM URB. L.J.1157 (2004).

(129.) See supra notes 36-39 and accompanying text (describing theopacity of many misdemeanor court systems).

(130.) The nonprofit organization Measures for Justice is beginningto gather some of this data from states around the country. See MEASURESFOR JUST., https://measuresforjustice.org [https://perma.cc/KA4H-UT8H];see also FLA. STAT. [section] 900.05 (2018) (imposing data collectionrequirements on criminal justice actors).

(131.) KOHLER-FLAUSMANN, supra note 7, at 183-220.

(132.) Id. at 184 (citing Harold Garfinkel, Conditions ofSuccessful Degradation Ceremonies, 61 AM. J. Soc. 420 (1956)).

(133.) Id. at 186-67.

(134.) Id. at 188-89.

(135.) Id. at 193.

(136.) Id. at 183.

(137.) Id. at 220.

(138.) Id. at 188.

(139.) Id. at 187.

(140.) Id. at 193; see also id. at 198, 214-20 (describing longcourtroom waits).

(141.) Id. at 194.

(142.) Id. at 192. The word despoiled is Kohler-Hausmann's,not Jannelle's.

(143.) Id. at 221.

(144.) Id. at 228-29.

(145.) Id. at 229.

(146.) Id. at 222.

(147.) Id.

(148.) See generally PETER EDELMAN, NOT A CRIME TO BE POOR: THECRIMINALIZATION OF POVERTY IN AMERICA (2017); GUSTAFSON, supra note 28;WACQUANT, supra note 27; see also supra notes 25-30 and accompanyingtext (describing criminalization-of-poverty literature).

(149.) KOHLER-HAUSMANN, supra note 7, at 224.

(150.) Set' FED. R. EVID. 404 (prohibiting the introduction ofcharacter evidence); Papachristou v. City of Jacksonville, 405 U.S. 156(1972) (striking down a statute criminalizing the status of beingunemployed or vagrant); Robinson v. California, 370 U.S. 661 (1962)(holding that due process is violated by the criminalization of addictstatus).

(151.) KOHLER-HAUSMANN, supra note 7, at 93.

(152.) Id. at 16 ("Findings from one place [such as New York]can alert us to phenomena at a different one, such as noncarceral penalpower that operates by virtue of record keeping, iterative encounterswith courts, or the evaluation of actions during thoseencounters.").

(153.) Id. at 195 ("[A]ny misdemeanor drug conviction triggersa six-month license suspension .... If a person can't pay themandatory court fees, civil judgment is disastrous for credit.").

(154.) Id. at it.

(155.) Id.

(156.) See id. at 70.

(157.) Id. at 33, 36 (describing the heightened warrant enforcementunder broken-windows policing).

(158.) See Jennifer Gonnerman, Before the Law, NEW YORKER (Oct. 6,2014), https://www.newyorker.com/magazine/2014/10/06/before-the-law[https://perma.cc/8L8J-788R].

(159.) See KOHLER-HAUSMANN, supra note 7, at 164 ("Mostdefendants will accept a guilty plea when they are being held in onbail."); Nick Pinto, The Bail Trap, N.Y. TIMES MAG. (Aug. 13,2015), https://www.nytimes.com/2015/08/16/magazine/the-bail-trap.html[https://perma.cc/N6PD-AXEN].

(160.) See KOHLER-HAUSMANN, supra note 7, at 183-220.

(161.) Id. at 187-89.

(162.) Paul Heaton et al., The Downstream Consequences ofMisdemeanor Pretrial Detention, 69 STAN. L. PEV. 711, 741-68 (2017)(documenting how short periods of incarceration affect people over thelong term).

(163.) KOHLER-HAUSMANN, supra note 7, at 4.

(164.) Id. at 153. The conviction rate is lower for the cohorts ofMJACDs on which Kohler-Hausmann focuses. Id. at 86-87.

(165.) Id. at 68 fig.2.1.

(166.) Id. at 153 ("The statutory definition of disorderlyconduct is very broad. In practice, the mark of a 'dis con'conviction does not indicate that the defendant is guilty of anyspecific illegal conduct. Rather, it serves as an all-purpose genericcharge to mark the defendant.").

(167.) Id. at 158-59 (noting that even though dis-con records maybe sealed for rap-sheet purposes, noncriminal conviction court recordsnever seal, so prosecutors and judges can always find them later).

(168.) Id. at 97.

(169.) Id. at 10; id. at 264 (describing the "managerialapproach [as] eschewing the heavy machinery of criminal law unless thereis some indication the person persistently flouts legal rules");see supra text accompanying notes 17-20.

(170.) See Erica McWhorter & David LaBahn, Confronting theElephants in the Courtroom Through Prosecutor Led Diversion Efforts, 79ALB. L. REV. 1222 (2016) (advocating for increased diversionaryprograms, which the authors, the Deputy General Counsel andPresident/CEO of the Association of Prosecuting Attorneys, argue canreduce reoffending, conserve resources, and diminish collateral harms ofprosecution); 21 Principles for the 21st Century Prosecutor, BRENNANCTR. FOR JUST. 4 (2018),https://www.brennancenter.org/sites/default/files/publications/FJP_21Principles_FINAL.pdf [https://perma.cc/L5K5-4YNM] (explaining that thefirst principle of better prosecution is to "make diversion therule"). But see Shaila Dewan & Andrew W. Lehren, After a Crime,the Price of a Second Chance, N.Y. TIMES (Dec. 12, 2016),https://www.nytimes.com/2016/12/12/us/crime-criminal-justice-reform-diversion.html [https://perma.cc/8URF-RSS4] (describing how some prosecutorscharge exorbitant fees to defendants for participating in diversionprograms).

(171.) KOHLER-HAUSMANN, supra note 7, at 84.

(172.) Id. at 147.

(173.) Id. at 147-48.

(174.) Id. at 151.

(175.) Id. at 84 (noting that administrative error is"surprisingly common"). As New York State's AttorneyGeneral, Andrew Cuomo investigated ChoicePoint, a national datacollection company, and several large New York employers for improperlygathering and relying on dismissed and sealed records in makingemployment decisions. Editorial, Denied a Chance for Honest Work, N.Y.TIMES (Jan. 18, 2010),https://www.nytimes.com/2010/01/19/opinion/19tue3.html[https://perma.cc/6HDS-J2W8]; Adam Liptak, Expunged Criminal RecordsLive to Tell Tales, N.Y. TIMES (Oct. 17, 2006),https://www.nytimes.com/2006/10/17/us/17expunge.html[https://perma.cc/G73F-FZQP].

(176.) KOHLER-HAUSMANN, supra note 7, at 163.

(177.) Id. at 175.

(178.) Id. at 176.

(179.) Shaila Dewan, Probation May Sound Light, but Punishments CanLand Hard, N.Y. TIMES (Aug. 2, 2015),https://www.nytimes.com/2015/08/03/us/probation-sounding-light-can-land-hard.html [https://perma.cc/NBX2-HGMF]; see also Probation and ParoleSystems Marked by High Stakes, Missed Opportunities, PEW 9 & fig.6(Sept. 2018), https://www.pewtrusts.org/-/media/assets/2018/09/probation_and_parole_systems_marked_by_high_stakes_missedopportunities_pew.pdf[https://perma.cc/42JT-AJXE] (documenting a one-third probation-failurerate nationally).

(180.) See KOHLER-HAUSMANN, supra note 7, at 261 (describing largeclasses of people who "quite often fail these conditional leniencyoffers").

(181.) NATAPOFF, supra note 5, at 43-44 & n.5. In Connecticut,a nolle prosequi represents a decision not to prosecute, but theprosecutor retains the right to reopen the case over the next thirteenmonths. See CONN. GEN. STAT. [section] 54-142a(c) (2017); see also KirkR. Williams, Family Violence Risk Assessment: A PredictiveCross-Validation Study, 36 LAW & HUM. BEHAV. 120, 122 (2012)(describing Connecticut treatment of a "nolle [as] no prosecution,but the case stays open for 13 months and if violations occur, the casecan be reopened"); E-mail from Joseph Greelish, Deputy Dir., Conn.Judicial Branch, to author (Sept. 5,2017) (on file with author)(describing Connecticut practice).

(182.) Spreadsheet from Texas Administrative Office of the Courts(unpublished data) (on file with author).

(183.) Spreadsheet from Kentucky Department of Information andTechnology Services Research and Statistics (unpublished data) (on filewith author). Kentucky provided data on order-maintenance-type offensessuch as trespassing and disorderly conduct, as well as DUI, driving on asuspended license, and other comparable traffic misdemeanors. Id.

(184.) See WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE [section]1.11(C-1), Westlaw (database updated Nov. 2018).

(185.) See, e.g., Darryl Brown, The Decline of Defense Counsel andthe Rise of Accuracy in Criminal Adjudication, 93 CALIF. L. REV. 1585,1589-91 (2005) (describing how the erosion of the adversarial nature ofcriminal procedure affects adjudicative accuracy); Maximo Langer,Rethinking Plea Bargaining: The Practice and Reform of ProsecutorialAdjudication in American Criminal Procedure, 33 AM. J. CRIM. L. 223,255-56 (2006) (explaining how the adversarial context moderatesprosecutorial powers in plea bargaining).

(186.) See Strickland v. Washington, 466 U.S. 668, 691-92 (1984)("The purpose of the Sixth Amendment guarantee of counsel is toensure that a defendant has the assistance necessary to justify relianceon the outcome of the proceeding."); United States v. Cronic, 466U.S. 648, 655 (1984) ("The very premise of our adversary system ofcriminal justice is that partisan advocacy on both sides of a case willbest promote the ultimate objective that the guilty be convicted and theinnocent go free." (quoting Herring v. New York, 422 U.S. 853, 862(1975))).

(187.) See KOHLER-HAUSMANN, supra note 7, at 4; see abo id. at 61(defining the adjudicative model as one in which "the role of courtactors is to adjudicate the factual guilt or innocence of a defendant ina particular case"); id. at 72 ("[T]his [adjudicative] modeldoes not require that courts adjudicate the question of guilt andpunishment according to any specific type of formal or adversarialprocess."). But see id. at 263 (describing the New York system as"ostensibly adjudicative and adversarial").

(188.) See Gideon v. Wainwright, 372 U.S. 335, 344 (1963)(describing the U.S. commitment to the adversarial system); Brown, supranote 185, at 1588, 1590 (describing the weaknesses of adversarialadjudication in a system of plea bargaining).

(189.) See Grassley Statement, supra note 4; Gideon's BrokenPromise: America's Continuing Quest for Equal Justice, A.B.A.(2004) [hereinafter Gideon's Broken Promise],https://www.americanbar.org/content/dam/aba/administrative/legal_aid_indigent_defendants/ls_sclaid_def_bp_execsummary.authcheckdam.pdf[https://perma.cc/M6WP-Z7PM] (discussing problems in indigent defenseincluding lack of adequate funding and inadequate legal representation);Boruchowitz et al., supra note 48, at 14-20.

(190.) See Scott v. Illinois, 440 U.S. 367, 373-74 (1979).

(191.) Boruchowitz et al., supra note 48, at 17.

(192.) See Gideon's Broken Promise, supra note 189, at 24-25.

(193.) Boruchowitz et al., supra note 48, at 15.

(194.) 535 U.S. 654 (2002) (requiring the appointment of counselwhen a defendant is sentenced to revocable probation or a suspendedsentence).

(195.) Boruchowitz et al., supra note 48, at 15; see also Price,supra note 51, at 18-19 (documenting the absence of defense counsel inSouth Carolina summary courts); Smith et al., supra note 53, at 16(same).

(196.) See Richard A. Oppel Jr. & Jugal K. Patel, One Lawyer,194 Felony Cases and No Time, N.Y. TIMES (Jan. 31, 2019),https://www.nytimes.com/interactive/2019/01/31/us/public-defender-case-loads.html [https://perma.cc/BKN9-BMT8].

(197.) A Race to the Bottom: Speed and Savings over Due Process: AConstitutional Crisis, NAT'L LEGAL AID & DEF. ASS'N, at ii(2008), http://www.mynlada.org/michigan/michigan__report.pdf[https://perma.cc/A9QD-G36Y].

(198.) Tracey Kyckelhahn, Justice Expenditure and EmploymentExtracts, 2012 - Preliminary, BUREAU JUST. STAT, tbl.i (Feb. 26, 2015),https://www.bjs.gov/index.cfm?ty=pbdetail&iid=5239[https://perma.cc/349X-TBE3] (download "comma-delimited format(CSV)"; then open "jeeus1201.csv") (displaying for fiscalyear 2012 the "[p]ercent distribution of expenditure for thejustice system by type of government").

(199.) AM. BAR ASS'N, ABA STANDARDS FOR CRIMINAL JUSTICEPROVIDING DEFENSE SERVICES 72 & n.13 (3d ed. 1992).

(200.) Boruchowitz et al., supra note 48, at 21.

(201.) Id. at 33.

(202.) Wilbur v. City of Mount Vernon, 989 F. Supp. 2d 1122 (W.D.Wash. 2013).

(203.) Protecting the Constitutional Right to Counsel for IndigentsCharged with Misdemeanors: Hearing Before the S. Comm. on the Judiciary,114th Cong. 2 (2015) (statement of Robert C. Boruchowitz, Professor,Seattle University School of Law).

(204.) N.Y. CRIM. PROC. LAW [section] 170.10.3 (Consol. 2018)("The defendant has the right to the aid of counsel at thearraignment and at every subsequent stage of the action."); seealso 32 NEW YORK JURISPRUDENCE: CRIMINAL LAW: PROCEDURE [section] 738(2d ed. 2016).

(205.) See, e.g., KOHLER-HAUSMANN,supra note 7, at 118.

(206.) Id. at 134.

(207.) Id. at 153.

(208.) Id. at 137.

(209.) Id. at 164; see also id. at 200 (describing an incident inwhich a defense attorney used a letter from the client's employerto negotiate an ACD); id. at 201-02 (relaying an incident in whichdefense counsel deployed a delay tactic to the benefit of the client);id. at 262 (describing an incident in which a defense attorney"forcefully" rejected a plea offer and obtained a betterdisposition).

(210.) Id. at 175.

(211.) Id. at 265.

(212.) Id. at 128; cf. In re Winship, 397 U.S. 358, 364 (1973)(holding that the government bears the burden of proving adefendant's guilt beyond a reasonable doubt).

(213.) Judges are also reluctant to dismiss cases. One judge"said that he rarely grants a defense motion [to dismiss] on thebasis of factual claims, because 'there's always two sides tothe story,' nor on the basis of legal claims, because he does nothave time to adequately research the law in the middle of a typicalshift." KOHLER-HAUSMANN, supra note 7, at 109.

(214.) Id. at 127-28.

(215.) Id. at 128-29. The public defender described arguing"for an hour" until the judge decided to dismiss the case. Id.

(216.) Id. at 166.

(217.) See Bowers, supra note 128, at 1712-20 (discussingdifferentials in declination rates).

(218.) See Joseph Goldstein, Prosecutor Deals Blow toStop-and-Frisk Tactic, N.Y. TIMES (Sept. 25, 2012),https://www.nytimes.com/2012/09/26/nyregion/in-the-bronx-resistance-to-prosecuting-stop-and-frisk-arrests.html [https://perma.cc/2F4Q-FBTW].

(219.) See Stephanie Clifford & Joseph Goldstein, BrooklynProsecutor Limits When He'll Target Marijuana, N.Y. TIMES (July 8,2014), https://www.nytimes.com/2014/07/og/nyregion/brooklyn-district-attorney-to-stop-prosecuting-low-level-marijuana-cases.html[https://perma.cc/RSH6-GAN8].

(220.) See Civil Rights Div., supra note 62, at 26, 35.

(221.) See KOHLER-HAUSMANN, supra note 7, at 146. Kohler-Hausmannclarifies in a note that "some arrests are discarded at theprecinct," and that these are not included in that seven to twelvepercent declination rate. The overall prearraignment declination ratemight therefore effectively be higher. Id. at 146 n.8; see also New YorkCounty 2013-2017 Dispositions of Adult Arrests, N.Y. DIVISION CRIM.JUST. SERVICES 5 (Apr. 20, 2018),http://www.criminaljustice.ny.gov/crimnet/ojsa/dispos/newyork.pdf[https://perma.cc/E7NZ-MHWU] (listing misdemeanor declination ratesbetween two and four percent from 2013 to 2017).

(222.) KOHLER-HAUSMANN, supra note 7, at 67.

(223.) Id. at 20.

(224.) Id. at 74; see also id. at 266 ("The moral principle atwork in the managerial model [is] that we essentially don't seekany punishment at all unless the person demonstrates a persistentdisregard for social rules and otherwise seems unmoored from otherinstitutions of social control....").

(225.) Id. at 84-85.

(226.) Id. at 73.

(227.) Id. at 123; see also Stephanos Bibas, Regulating thePlea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99CALIF. L. REV. 1117,1141-46 (2011) (describing how defense lawyeringdrives the plea-bargaining market and therefore the fairness of guiltypleas); cf. Albert W. Alschuler, A Nearly Perfect System for Convictingthe Innocent, 79 ALB. L. REV. 919, 919-22 (2015) (describing howprosecutorial bargaining tactics can lead to wrongful conviction);William J. Stuntz, Plea Bargaining and Criminal Law's DisappearingShadow, 117 HARV. L. REV. 2548, 2558 (2004) (discussing the relativelyconstrained negotiating powers of defense counsel).

(228.) See KOHLER-HAUSMANN, supra note 7, at 131 (describing the"difficulty [for defense counsel] in trying to convince clients toreject arraignment guilty pleas").

(229.) BRONX DEFENDERS, https://www.bronxdefenders.org[https://perma.cc/W266-K23Y]; see also James Anderson et al., TheEffects of Holistic Defense on Criminal justice Outcomes, 132 HARV. L.REV. 819, 823 (2019) (describing the holistic-defense model deployed byBronx Defenders as saving its clients over one million days in jail overa ten-year period).

(230.) No Day in Court: Marijuana Possession Cases and the Failureof the Bronx Criminal Courts, BRONX DEFENDERS 2 (May 2013),https://www.bronxdefenders.org/wp-content/uploads/2013/05/No-Day-in-Court-A-Report-by-The-Bronx-Defenders-May-2013.pdf [https://perma.cc/WRU4-PMP4].

(231.) KOHLER-HAUSMANN, supra note 7, at 150 (noting an "otherdismissal" rate of twelve to fifteen percent).

(232.) BRONX DEFENDERS, supra note 230, at 3.

(233.) Penson v. Ohio, 488 U.S. 75, 84 (1988).

(234.) See Natapoff, Gideon Skepticism, supra note 13, at 1057-66(describing the outsized role that defense counsel plays in legitimatingthe adjudicatory system).

(235.) See Natapoff, Gideon's Servants, supra note 13, at445-48, 459-62 (describing how the public-defense function often morphsinto social work).

(236.) While there is scant research on prosecutorialdecision-making, what little is available suggests that misdemeanorprosecutors often operate under external and internal pressures toconvert arrests into charges and then into convictions in ways thatoverstate defendant criminal liability. Misdemeanor dockets are usuallystaffed by the newest prosecutors, just as they are typically staffed byjunior public defenders. Bruce Frederick & Don Stemen, The Anatomyof Discretion: An Analysis of Prosecutorial Decision Making--TechnicalReport, NAT'L INST. JUST. 134-35 (Dec. 2012),https://www.ncjrs.gov/pdffiles1/nij/grants/240334.pdf[https://perma.cc/Z5ZF-AVDH]. New prosecutors are often more deferentialto police; one prosecutor explained that she "didn't have thewords" to challenge police decisions when she first started. RonaldF. Wright & Kay L. Levine, The Cure for Young Prosecutors'Syndrome, 56 ARIZ. L. REV. 1065, 1099-1113, 1101 n.190 (2014).

(237.) See, e.g., Boruchowitz et al., supra note 48; Roberts, supranote 102.

(238.) See Sharon Dolovich, Legitimate Punishment in LiberalDemocracy, 7 BUFF. CRIM. L. REV. 307, 313 (2004) (describing thetraditional view that due process promotes the democratic legitimacy ofcriminal punishment for innocent and guilty alike). This is not the onlypossible view. See Akhil Reed Amar, Fourth Amendment First Principles,107 HARV. L. REV. 757, 790 n.125 (1994) ("The deep logic of thecriminal procedure provisions of the Bill of Rights is not to protecttruly guilty defendants--especially those who have committed violentcrimes--from conviction, but primarily to protect truly innocentdefendants from erroneous conviction.").

(239.) See, e.g., United States v. Armstrong, 517 U.S. 456 (1996)(holding that equal protection guarantees protect against raciallydiscriminatory law enforcement); Papachristou v. City of Jacksonville,405 U.S. 156 (1972) (striking down a vagrancy statute in part because itconferred excessively unfettered discretion on police to discriminate);Yick Wo v. Hopkins, 118 U.S. 356, 366 (1886) (striking down cityordinances because they conferred "naked and arbitrary power"upon decision makers which was used to single out Chinese businesses).

(240.) See, e.g., Ingrid V. Eagly, Gideon's Migration, 122YALE L.J. 2282, 2306 (2013) (discussing the historic understanding ofGideon as a class and racial equalizer).

(241.) Misdemeanorland treats the adjudicative model as concernedprimarily with accuracy. See KOHLER-HAUSMANN, supra note 7, at 71("[T] he animating task organizing the work of criminal justiceactors [under the adjudicative model] is to determine whether thedefendant in fact committed the criminal act of which she isaccused."). The book thus does not focus on adjudication'sother legitimating functions: "It is not self-evident, at least tome, that what we want from misdemeanor courts is perfect adjudicativeaccuracy." Id. at 264; see also id. ("[C]ourt actors operatingunder the managerial model produce both false positives and falsenegatives ....").

(242.) See, e.g., Lawrence v. Texas, 539 U.S. 558 (2003) (limitingstate authority to criminalize same-sex adult intimate conduct);Papachristou, 405 U.S. at 156.

(243.) Jonathan Simon, The Second Coming of Dignity, in THE NEWCRIMINAL JUSTICE THINKING, supra note 13, at 275, 275-76; see alsoMonica C. Bell, Response, Hidden Laws of the Time of Ferguson, 132 HARV.L. REV. F. 1, 19-20 (2018) (distinguishing between legal legitimacy andsociological legitimacy); Jeffrey fa*gan, Dignity Is the New Legitimacy,in THE NEW CRIMINAL JUSTICE THINKING, supra note 13, at 308, 313("[I]ndignities are not easily managed by either a reinvigoratedlegality principle or by a procedure-based regulatory apparatus thatresponds formally to dignity incursions.").

(244.) See, e.g., Whren v. United States, 517 U.S. 806 (1996)(holding that pretext and racial bias do not invalidate stops andarrests as long as police have probable cause); Florida v. Bostick, 501U.S. 429, 436 (1991) (discounting the effect of police pressure on blackmales in obtaining consent to search). See generally Devon W. Carbado& Cheryl I. Harris, Undocumented Criminal Procedure, 58 UCLA L. REV.1543 (2011) (describing myriad ways in which criminal procedure permitsracial and other forms of discrimination).

(245.) See, e.g., Paul D. Butler, Poor People Lose: Gideon and theCritique of Rights, 122 YALE L.J. 2176, 2194-95 (2013) (criticizingGideon in particular and rights discourse more generally for validatingan inherendy unfair system of criminal laws).

(246.) See supra Part I.

(247.) See supra notes 59-60 (describing the centrality of thefault model).

(248.) See MODEL PENAL CODE [section] 1.02(1)(a) (AM. LAW INST.,Official Draft 1985) (stating that "[t]he general purposes of the[MPC] are... to forbid and prevent conduct that unjustifiably andinexcusably inflicts or threatens substantial harm to individuals orpublic interests"); LARRY ALEXANDER & KIMBERLY KESSLER FERZAN,CRIME AND CULPABILITY: A THEORY OF CRIMINAL LAW 263-87 (2009) (proposinga culpability-based criminal code); Henry M. Hart, Jr., The Aims of theCriminal Law, 23 LAW&CONTEMP. PROBS. 401,405 (1958) (identifyingcommunity condemnation as key to legitimate criminalization).

(249.) See, e.g., Atwater v. City of Lago Vista, 532 U.S. 318,365-73 (2001) (O'Connor, J., dissenting) (describing the thin statejustifications for making arrests in fine-only cases).

(250.) I discuss this phenomenon in greater depth in The PenalPyramid, supra note 13.

(251.) See supra notes 218-219 and accompanying text; see alsoAlexandra Natapoff, Opinion, When the Police Become Prosecutors, N.Y.TIMES (Dec. 26, 2018),https://www.nytimes.com/2018/12/26/opinion/police-prosecutors-misdemeanors.html [https://perma.cc/KB6X-A3KM] (describing the informal transferof misdemeanor prosecutorial authority to police).

(252.) 392 U.S. 1, 12 (1968).

(253.) Brown, supra note 185, at 1588-89 (citation omitted).

(254.) See generally JILL LEOVY, GHETTOSIDE: A TRUE STORY OF MURDERIN AMERICA (2015) (documenting homicide underenforcement in low-incomeAfrican American neighborhoods in Los Angeles). By contrast, drugoffenses, both serious and minor, are often decried as pretextual andracially motivated. See MICHELLE ALEXANDER, THE NEW JIM CROW: MASSINCARCERATION IN THE AGE OF COLORBLINDNESS 64-84 (2012).

(255.) See HARCOURT, supra note 73, at 7; fa*gan & Davies, supranote 73.

(256.) See Natapoff, supra note 12, at 117-18.

(257.) Of course, the mere fact of arrest can be punitive andthreatening in myriad ways beyond hassle. See Devon W. Carbado,(E)Racing the Fourth Amendment, 100 MICH. L. REV. 946, 953-57 (2002)(describing how being stopped by police constitutes a form ofdisciplining and racial formation for black people).

(258.) See, e.g., Rothgery v. Gillespie County, 554 U.S. 191 (2008)(discussing attachment of the right to counsel at critical stages);Massiah v. United States, 377 U.S. 201 (1964).

(259.) Floyd v. City of New York, 959 F. Supp. 2d 540, 560(S.D.N.Y. 2013).

(260.) John Leland & Colin Moynihan, Thousands March Silentlyto Protest Stop-and-Frisk Policies, N.Y. TIMES, (June 17, 2012),https://www.nytimes.com/2012/06/18/nyregion/thousands-march-silently-to-protest-stop-and-frisk-policies.html [https://perma.cc/X5AG-G6L5].

(261.) I. Bennett Capers, Race, Policing, and Technology, 95 N.C.L. REV. 1241, 1248 (2017) (emphasizing the Black Lives Mattermovement's anger over police violence against people of color who,like Eric Garner, are accused of minor crimes).

(262.) Brendan Cheney, For Non-White New Yorkers, Marijuana ArrestsMore Often Lead to Conviction, POLITICO (May 9,2017,5:06 AMEDT),https://www.politico.com/states/new-york/city-hall/story/2017/05/04/racial-disparities-in-marijuana-convictions-in-all-five-boroughs-111807[https://perma.cc/XM83-JR7L].

(263.) Ali Winston, What's at Stake in Fight for SubwayFare-Beating Data, N.Y. TIMES (Sept. 19, 2018),https://www.nytimes.com/2018/09/19/nyregion/hopping-subway-turnstiles-data.html [https://perma.cc/5L7W-ARU9].

(264.) See, e.g., About Court Watch NYC, CT. WATCH NYC,https://www.courtwatchnyc.org/about [https://perma.cc/GA67-A8EJ]; seealso Jocelyn Simonson, The Criminal Court Audience in a Post-TrialWorld, 127 HARV. L. REV. 2173, 2183 & n.40 (2014) (describingcourt-watch programs and listing sources).

(265.) See, e.g., Simonson supra note 12, at 600-02 (listing anddescribing the success of bail funds in getting individuals released);Our Results, BROOK. COMMUNITY BAIL FUND (2016),https://brooklynbailfund.org/our-results-i [https://perma.cc/US6C-MKEW](discussing the organization's role in keeping over 3,500individuals out of jail).

(266.) Ali Winston, Speedy Trials Return to a Bronx Court Known forDelays and Dysfunction, N.Y. TIMES (Aug. 9, 2018),https://www.nydmes.com/2018/08/09/nyregion/bronx-misdemeanor-backlog-settlement.html [https://perma.cc/JHS6-8HD7].

(267.) Jim Dwyer, Vowing to Slay the (Already Subdued)Stop-and-Frisk Dragon, N.Y. TIMES (Dec. 5, 2013),https://www.nytimes.com/2013/12/06/nyregion/de-blasio-and-bratton-promise-to-deliver-on-goals-but-give-no-credit.html[https://perma.cc/HPV3-UVQ3]; J. David Goodman, Fewer Criminal Ticketsfor Petty Crimes, Like Public Urination, N.Y. TIMES (Oct. 20, 2017),https://www.nytimes.com/2017/10/20/nyregion/criminal-summons-civil-public-urination.html [https://perma.cc/64RM-4RXH].

(268.) KOHLER-HAUSSMANN, supra note 7 at 10-11 ("I conclude byarguing that [this] study... illuminates a set of urgent moral andpolitical questions about the criminal justice system as an instrumentof social control and its role in reproducing class and racialinequality in the United States.").

(269.) Id. at 267; see also id. at 266 (noting that arrests are"systematically biased by certain social facts, some of which raisefundamental concerns of racial and class inequities").

(270.) Id. at 267.

(271.) Id. at 257.

(272.) Id.

(273.) Id. at 264.

(274.) Id. at 256.

(275.) Id.

(276.) Id.; see also id. at 264 ("There is both an efficiencyand fairness argument to be made for the managerial model ....").

(277.) Id. at 257.

(278.) Id. at 224.

(279.) Id. at 79.

(280.) Id. at 228-29.

(281.) Id. at 224.

(282.) Id. at 266 (explaining how it "seems... perfectlyreasonable" for frontline actors to use the managerial approach);see supra text accompanying notes 79-83 (describing managerial justiceas a practical response).

(283.) Id. at 261.

(284.) See id. at 263 (describing how a defendant named Frank"might well have been guilty... but it was his inability to performproperly... that led to his custodial arrest and the prosecutor'sinsistence that he plead guilty").

(285.) In a similar vein, Khalil Gibran Muhammad points out thatcriminal justice data have historically been inherently racial andnormative, even when they purport to be merely statistical. See KHALILGIBRAN MUHAMMAD, THE CONDEMNATION OF BLACKNESS : RACE, CRIME, AND THEMAKING OF MODERN URBAN AMERICA 4-5 (2011) (tracing the history of how"blackness was refashioned through crime statistics"); id. at277 ("The choice about which narratives we attach to [racializedcriminal] data... is ours to make.").

(286.) KOHLER-HAUSMANN, supra note 7, at 266.

(287.) See NATAPOFF, supra note 5, at 11-12 ("Like low-qualitypublic schools and segregated housing, misdemeanors are an integral partof the downward social cycle that creates and perpetuatesinequality.").

(288.) See KOHLER-HAUSMANN, supra note 7, at 1, 5 (contrasting massincarceration with the work of low level courts).

(289.) See, e.g., Turner v. Rogers, 564 U.S. 431, 442-46 (2011)(authorizing incarceration for civil contempt without the appointment ofcounsel); Atwater v. City of Lago Vista, 532 U.S. 318, 354-55 (2001)(describing the invasiveness and humiliations of a "normalcustodial arrest" for even a minor criminal offense as permissibleburdens even where such an offense could not lead to incarceration as aformal punishment); United States v. Salerno, 481 U.S. 739, 747 (1987)(noting that pretrial detention is a regulatory, not punitive, measure);cf. Padilla v. Kentucky, 559 U.S. 356, 365-66 (2010) (extending SixthAmendment effectiveness-of-counsel scrutiny to defense counsel'sadvice regarding deportation notwithstanding deportation's civilnature).

(290.) Sharon Dolovich and I have argued elsewhere for thisexpansive functional approach to punishment. See Dolovich &Natapoff, Introduction to THE NEW CRIMINAL JUSTICE THINKING, supra note13, at 1, 3 (arguing that the criminal process cannot be understoodwithout a full evaluation of "the actual human experience of themillions of people who are selected, labeled, managed, and punished as'criminals'").

(291.) See, e.g., WACQUANT, supra note 27, at 42-44 (arguing that acentral purpose of criminal punishment is to label and manage thedispossessed).

(292.) See Brian A. Reaves, Bureau of Justice Statistics, FelonyDefendants in Large Urban Counties, 2009 - Statistical Tables, U.S.DEP'T JUST. 26 (Dec. 2013)https://www.bjs.gov/content/pub/pdf/fdlucoo.pdf[https://perma.cc/ZS6D-C5BH] (noting that, in 2009, the mean felonyprison sentence was fifty-two months).