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In the mid-1990s New York City inaugurated its era of mass misdemeanors by pioneering policing tactics featuring intensive enforcement against low-level offenses as part of its quality-of-life and urban crime control strategy. These tactics have since spread across the country and around the globe. But the New York City experiment embarrasses our traditional understanding of how an expansion of criminal enforcement should work: as misdemeanor arrests climbed dramatically as part of an intentional law enforcement strategy, the rate of criminal conviction fell sharply. Using extensive, original data from a multiyear study, this Article exposes an underappreciated model of criminal administration in New York City's processing of mass misdemeanors, one that makes sense of this trend. Misdemeanor justice in New York City has largely abandoned what I call the adjudicative model of criminal law administration–concerned with adjudicating specific cases–and instead operates under what I call the managerial concemodel–rned with managing people through engagement with the criminal justice system over time. The adjudicative model holds that courts stand between the proscriptions of substantive criminal law and the hard treatment of punishment by employing the criminal process to select the right people for punishment and to determine the proper amount. The managerial model does not depend on punishing individual instances of lawbreaking, but rather on using the criminal process to sort and regulate the populations targeted with these policing tactics over time. These findings challenge the \"assembly-line\" account so often associated with lower criminal courts, showing that misdemeanor courts engage in a tremendous amount of discretionary differentiation in the treatment of the people who flow through their operations. However, the basis of this differentiation is not what we would expect from the traditional adjudicative model of criminal law, namely guilt and blameworthiness.

Current scholarship has explored how the carceral state governs and regulates populations. This literature has focused on prison and on the wide-reaching collateral consequences of a felony conviction. Despite the obvious importance of these findings, they capture only a portion of the criminal justice system's operations. In most jurisdictions, misdemeanors, not felonies, constitute the bulk of criminal cases, and the number of such arrests is rising. This article explores a puzzling fact about New York City's pioneering experiment in mass misdemeanor arrests: the preponderance result in no finding of guilt and no assignment of formal punishment. Drawing on two years of fieldwork, this article explores how the criminal justice system functions to regulate significant populations without conviction or sentencing. The author details the operation of penal power through the techniques of marking through criminal justice record keeping, the procedural hassle of case processing, and mandated performance evaluated by court actors to show the social control capacity of the criminal justice system. Adapted from the source document.

The model of discrimination animating some of the most common approaches to detecting discrimination in both law and social science-the counterfactual causal model-is wrong. In that model, racial discrimination is detected by measuring the \"treatment effect of race,\" where the treatment is conceptualized as manipulating the raced status of otherwise identical units (e.g., a person, a neighborhood, a school). Most objections to talking about race as a cause in the counterfactual model have been raised in terms of manipulability. If we cannot manipulate a person's race at the moment of a police stop, traffic encounter, or prosecutorial charging decision, then it is impossible to detect if the person's race was the sole cause of an unfavorable outcome. But this debate has proceeded on the wrong terms. The counterfactual causal model of discrimination is not wrong because we can't work around the practical limits of manipulation, as evidenced by both Eddie Murphy's comic genius in the Saturday Night Live skit \"White Like Me\" and the entire genre of audit and correspondence studies. It is wrong because to fit the rigor of the counterfactual model of a clearly defined treatment on otherwise identical units, we must reduce race to only the signs of the category, meaning we must think race is skin color, or phenotype, or other ways we identify group status. And that is a concept mistake if one subscribes to a constructivist, as opposed to a biological or genetic, conception of race. The counterfactual causal model of discrimination is based on a flawed theory of what the category of race references, how it produces effects in the world, and what is meant when we say it is wrong to make decisions of import because of race. I argue that DISCRIMINATION is a thick ethical concept that at once describes and evaluates the actions to which it is applied, and therefore, we cannot detect actions as discriminatory by identifying a relation of counterfactual causality; we can do so only by reasoning about the action's distinctive wrongfulness by referencing what constitutes the very categories that are the objects of concern. An adequate theory of discrimination must rest upon (1) an account of the system of social meanings or practices that constitute the categories at issue and (2) a moral theory of what is fair and just in various state and private arenas given what the categories are.

Current scholarship has explored how the carceral state governs and regulates populations. This literature has focused on prison and on the wide-reaching collateral consequences of a felony conviction. Despite the obvious importance of these findings, they capture only a portion of the criminal justice system’s operations. In most jurisdictions, misdemeanors, not felonies, constitute the bulk of criminal cases, and the number of such arrests is rising. This article explores a puzzling fact about New York City’s pioneering experiment in mass misdemeanor arrests: the preponderance result in no finding of guilt and no assignment of formal punishment. Drawing on two years of fieldwork, this article explores how the criminal justice system functions to regulate significant populations without conviction or sentencing. The author details the operation of penal power through the techniques ofmarkingthrough criminal justice record keeping, theprocedural hassleof case processing, and mandatedperformanceevaluated by court actors to show the social control capacity of the criminal justice system.

Current scholarship has explored how the carceral state governs and regulates populations. This literature has focused on prison and on the wide-reaching collateral consequences of a felony conviction. Despite the obvious importance of these findings, they capture only a portion of the criminal justice system's operations. In most jurisdictions, misdemeanors, not felonies, constitute the bulk of criminal cases, and the number of such arrests is rising. This article explores a puzzling fact about New York City's pioneering experiment in mass misdemeanor arrests: the preponderance result in no finding of guilt and no assignment of formal punishment. Drawing on two years of fieldwork, this article explores how the criminal justice system functions to regulate significant populations without conviction or sentencing. The author details the operation of penal power through the techniques of marking through criminal justice record keeping, the procedural hassle of case processing, and mandated performance evaluated by court actors to show the social control capacity of the criminal justice system.

Previous research has provided estimates of the cumulative risk of felony conviction and imprisonment in the United States. These experiences are, however, also the rarest; most of what happens in the criminal justice system occurs at the level of the misdemeanor rather than the felony. This article addresses our limited understanding of the scope of subfelony justice by providing estimates of the cumulative risk of several lower-level arrest outcomes for one jurisdiction: New York City. Because of excess life table events contributed by nonresidents of New York City, estimates are likely upwardly biased relative to the true values. Nonetheless, they allow us to (1) assess the cumulative risk of misdemeanor conviction and jail sentences and (2) determine to what extent those who enter the world of subfelony justice are distinct from those with felony or imprisonment records.

A vital collection for reforming criminal justice. After five decades of punitive expansion, the entire U.S. criminal justice system- mass incarceration, the War on Drugs, police practices, the treatment of juveniles and the mentally ill, glaring racial disparity, the death penalty and more - faces challenging questions. What exactly is criminal justice? How much of it is a system of law and how much is a collection of situational social practices? What roles do the Constitution and the Supreme Court play? How do race and gender shape outcomes? How does change happen, and what changes or adaptations should be pursued? The New Criminal Justice Thinking addresses the challenges of this historic moment by asking essential theoretical and practical questions about how the criminal system operates. In this thorough and thoughtful volume, scholars from across the disciplines of legal theory, sociology, criminology, Critical Race Theory, and organizational theory offer crucial insights into how the criminal system works in both theory and practice. By engaging both classic issues and new understandings, this volume offers a comprehensive framework for thinking about the modern justice system. For those interested in criminal law and justice, The New Criminal Justice Thinking offers a profound discussion of the complexities of our deeply flawed criminal justice system, complexities that neither legal theory nor social science can answer alone.