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

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

This chapter presents an introduction to current mitigation practice by examining some of the specific legal standards that have contributed to the development of this highly specialized area of criminal law. It also presents a conceptualization of mitigation proffered by Justice Sandra Day O'Connor, which helped in the organization and the selection of the materials examined in this book. The chapter begins by addressing the question: What is mitigation? It then discusses the current limits on mitigation practice; investigation as the cornerstone of death penalty representation; mitigation themes; and challenging evidence of aggravation.