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Performances in Misdemeanorland

Every year, thousands of misdemeanor defendants pass through New York City’s lower criminal courts. Many find themselves trapped in a Kafkaesque nightmare.

The Halls of Justice, or The Tombs, on Centre Street, New York City, 1870. Manual of the Corporation of the City of New York / Wikimedia

“I know,” he said, “that my case can’t be settled today, not yet, but I’ve come in anyway, I thought, I thought I could wait here anyway, it’s Sunday today, I’ve got plenty of time, and I’m not disturbing anyone here.”

“There’s no need to be so apologetic,” said the information-giver, “it’s very commendable for you to be so attentive. You are taking
up space here when you don’t need to but as long as you don’t get in my way I will do nothing to stop you following the progress of your case as closely as you like. When one has seen so many people who shamefully neglect their cases one learns to show patience with people like you. Do sit down.”

—Franz Kafka, The Trial

Some performances in New York’s lower criminal courts — where over 160,000 misdemeanor cases are handled each year — are scripted. Some are impromptu. Some performances transpire as the unintended consequence of case processing and are then reinterpreted as meaningful accomplishments only at some later point in a case’s life course.

But what unites the disparate activities I collect under the rubric of performance is that the defendant has discharged some meaningful undertaking that is evaluated by court officials. He has complied with some duty, assigned task, program activity, therapeutic encounter, or proposed some other behavioral accomplishment that court actors can interpret as expressive of the defendant’s character or worthiness.

Lower criminal courts actively engage their subjects in an effort to modify their behaviors or produce new sensibilities through various transformative techniques. It is important to note that many people leave misdemeanorland with the same formal legal status with which they entered: no criminal conviction. Nonetheless, even those who are never convicted of a criminal offense often make repeated trips through misdemeanorland. There are active feedback loops within and between encounters such that subjects are evaluated on how they engage with the processing mechanisms. For both those who end up with criminal records and those who do not, recursive classification, processing, and evaluation is not merely a series of independent and sequel adjudications.

As Megan Comfort notes with respect to the frequent encounters with the security clearance rituals of intimate partners visiting loved ones in prison, “one can posit that recurrent exposure to this ordeal will itself become a transformative course,” if not upon the subjectivities of defendants, then upon the person they are perceived to be by court actors. The trip through misdemeanorland is productive of a social and political status by virtue of the experience, not just by virtue of the formal status determined by the court. The performances demanded, offered, and evaluated represent a mode of engaging defendants over time to evaluate their capacity for right behavior and to adjust official reaction and reform activities accordingly.

We Have a Program For That

“Program” is a catchphrase for an assortment of classes, therapeutic interventions, informational sessions, and social services. The content of programs addresses the gamut of criminal conduct or, in some cases, the ascribed underlying problem of the offender. Programs can be imposed as part of different types of dispositions — dismissal, conviction to a noncriminal violation, or conviction to a misdemeanor crime. One of the most common dispositions that entails a performance in misdemeanorland is an adjournment in contemplation of dismissal (ACD) — which means the case is technically adjourned for some period of time (usually six or twelve months) and then dismissed and sealed if the defendant is not rearrested and if he completes some assigned program.

Indeed, it is more accurate to state that ACD is earned through the program, a phrasing often heard in misdemeanorland. Although New York State Department of Criminal Justice Services (DCJS) does not have comprehensive records on the number of dispositions involving a program, the standard offers in most boroughs for certain types of arrest charges always involve a program.

For example, an anti-prostitution class or mandated counseling sessions designed for sex workers is the standard offer on a prostitution arrest with an ACD upon successful completion; many first-time arrestees for shoplifting are offered an ACD only upon completion of an anti-shoplifting program (“Stoplift”); in many boroughs, first-time arrestees for possession of misdemeanor-weight narcotics are offered an ACD only upon completion of short half-day session discussing the availability of treatment services called the Treatment Readiness Program. Programs are also often part of conviction dispositions. Anti-domestic violence programs are standard offers for assault arrests where the complainant is an intimate of the defendant, and some sort of anti-drunk driving program is mandatory for almost all DWI convictions.

Programs to engage the values, attitudes, and character of penal subjects and to reform their errant behaviors through education, treatment, and retraining are hardly new. The reformist penal projects of the nineteenth century were premised on the restorative promise of rehabilitative programs, both inside and outside of prisons. In fact, the era of mass incarceration in the United States, starting in the 1970s, is widely identified as the epoch in which the state retreated from welfarist approaches to crime and punishment. Many scholars have defined the current criminal justice era in the United States in terms — such as punitive neoliberalism, new penology, or culture of control — that denote a rejection of an overarching commitment to rehabilitation and an embrace of punitive exclusion, segregation, and brute behavioral control.

Despite these changes in the master narrative of criminal justice practices, programs are currently a central feature of case processing in misdemeanorland. Sit in any misdemeanor arraignment or all-purpose part in the city, and you will hear a veritable alphabet soup of programs being offered and accepted as part of case dispositions. And criminal justice actors often talk about their innovation and use of programs by appealing to welfarist rationalities, expressing concern with “root causes” of criminal offending or a desire to aid the psychological transformation of defendants.

Jerome, a staff member of a nonprofit entity that pioneers programs in criminal court, said of the underlying social ills behind most of the arrests he saw, “We cannot just ignore these problems with impunity… In theory, social services would be there in other ways outside of the criminal justice system, but they are not. So they show up at the courthouse doorstep.” Discussing the mandated social services his agency designs and operates that are offered to earn a favorable criminal-court disposition, he said, “We are not widening the net but breaking the cycle that could lead to many more arrests and convictions in the future.”

Criminal justice actors in misdemeanorland often explain their devotion to programs in terms of discomfort or disagreement with using traditional custodial penalties in response to certain crimes or defendants. Diane, a young lawyer recently hired at the DA’s office in Borough A, said that the extensive offerings of programs is one of the reasons that she wanted to work in Borough A’s prosecutor’s office: “It’s not like other offices where we have no autonomy to offer anything. Here you can go to the supervisor and say, ‘This is this person’s issue. Can we work on something like this?’ It’s the progressive dedication to programs and problem solving that made me want to work at this office.”

Despite the declaration of welfarist rationalities, the design of most programs and the larger social and political context in which they are deployed make it hard to reasonably believe that these programs are capable of achieving anything close to the transformative ideals espoused to support them. Al, an arraignment supervisor for the DA’s office, in response to a question about what he found frustrating about his job, said, “You cannot really address all the problems that bring people here, but they all end up here with their problems.” Looking around the arraignment courtroom filled with low-income people, mostly of color, he went on to say, “This place is not set up really to deal with the issues. They try, and you have to give Mr. [District Attorney] credit for that, but it is hard to deal with these issues in the courts.”

The Penal Value of Program Performance

Although criminal-court actors promote programs with welfarist trappings, their central operative features tend to become not their programmatic content but the form of performance. All programs require defendants to execute a series of actions and activities. Defendants are subsequently evaluated on their accomplishments. This form of performance allows criminal-court actors to engage the defendant’s general capacity for rule following, manage potential risks, or merely impose punitive burdens. As programs become established disposition tools in misdemeanorland, performance is commensurated with and traded off against other penal burdens in the ongoing enterprise of social control. In the process, it is not clear that programs either increase or decrease the overall social-control burdens experienced by defendants.

Insofar as welfarist programs are mandates arising from a criminal justice case, the power to require performance is limited by the leverage court actors have in the encounter. Marta, the social-worker coordinator for the drug courts in Borough A, explained that the judge sitting in the misdemeanor drug part would rarely impose more than a ninety-day jail sentence for someone who repeatedly failed out of mandated drug treatment. She said that although she understood why that was a fair sentence, it made it hard to motivate misdemeanor defendants into intensive drug-treatment programs, especially those with long histories of addiction and arrest:

Our participants generally don’t get any more than ninety days … [and] that’s also the challenge with the misdemeanor population. One of the reasons that Drug Court is so successful is that — because it’s the carrot and the stick approach. So the carrot is that your case is going to be dismissed, but it’s also, like, a hammer. Like, if you don’t do this — if you don’t complete it … it’s the jail alternative, with felonies… In addiction, you need that kind of motivation. Unfortunately, what we’re finding with the misdemeanor population, especially misdemeanants who have been in and out of this system for so long they can do, and I should probably put it a different way, but they can do ninety days standing on their head, at Rikers Island. Unfortunately. So the threat of a ninety-day jail alternative isn’t really a motivator for the misdemeanants.

Excessively burdensome programs are usually not considered for a misdemeanor arrest unless the defendant is facing some jail time, and even so, many defendants would rather take traditional sanctions over some programs. Fred, a middle-aged black man arrested for misdemeanor narcotics possession with an extensive history of misdemeanor drug arrests (but not a single felony), described the options:

Q: Are you going to fight the charge?

Fred: [Sighs] If I fight it, I’m going to go to jail. That’s why everybody pleads guilty. You come, plead guilty, and go home. And if you try to fight it, they’re going to lock you up.

Q: So what happens when you keep pleading guilty?

Fred: See, now they’re talking about giving me some time. And I have to go to take this drug-treatment thing program. And I don’t have time for that. Eight months, going to this place two or three days. I don’t have time for that.

Q: Do you work?

Fred: Yeah. I’m a plumber.

Fred admitted to struggling with a serious crack and heroin addiction since he was seventeen, but he reported holding down a steady job notwithstanding his addiction. Nonetheless, he explained that he refused to be subject to what he felt was degrading treatment, even to avoid another conviction or jail time:

Fred: This place I was in. After dinner there would be pots, and they don’t have a designated man to wash the pots. So the way they did it was that if you violated one of the rules — okay, you got to wash pots as a punishment. Say no one violated rules? Now they going to pick on somebody. “You have to do the pots.” And that’s not right. You know what they said? It builds character. Washing pots? You wash them fucking pots! [Laughs] What kind of character? … I’ll accept the punishment if I’ve done something. Okay. But if I didn’t do anything, you wash them pots. Okay? If I came in late — all right, fine. That’s how you think it works, we’ll do it. I can understand the discipline. But just because no one is in trouble at the moment and you need the pots cleaned? I think you should go wash them.

Q: So it sort of feels like they think that if they punish you enough, it’s going to help you get over your addiction? Is that the logic?

Fred: Yeah. I’ve heard of ones where they sit you down in the chair and the other people that’s in the program will scream on you. And say things like, “What you did was wrong! And you should never have done that!” Embarrassing them. What the hell is that going to do? And you can’t say nothing while you’re sitting in that chair.

Q: What do you think they’re trying to do?

Fred: I don’t know. Make them jump up and punch somebody in their face. What else? What is that going to do, really? I can’t get that. I tried. And I won’t go to one of those programs. One of those “TC.” That’s what they call them.

Q: What does that stand for?

Fred: Therapeutic community.

Q: Really?

Fred: Yeah. That’s some kind of therapy.

As programs become integrated into the everyday operations of courtroom practice, they circulate less as meaningful welfare interventions and more as devices to dispose of cases by imposing recognizable burdens and demanding meaningful performances of governability.

The Cost of Failure

Ariel was homeless and struggling with a serious drug addiction when arrested in July 2010 for loitering for the purposes of prostitution, although she claimed she was buying drugs and not prostituting. She already had two open cases: one for crack possession and one for attempted assault against her boyfriend. The DA’s office had recently introduced a new program designed to help women exit the sex trade, and she was offered an ACD on the prostitution cases if she completed the once-a-week program for six sessions.

Ariel missed multiple court appearances for the other open cases and, although she signed up for the program, she repeatedly missed it. She was subsequently arrested two more times for drug possession. In January 2011, after being held on bail for her most recent arrest, the ACDs were withdrawn because she never completed the conditions, and she was sentenced to forty-five days in jail in satisfaction of all five open cases. She knew, and her lawyer knew, that the fastest way to dispose of all her cases would be to serve time at Rikers as opposed to keeping up the cycle of failing at programs, warrants, and rearrests. Ariel had spent so much time in custody on her various arrests that by the time she was sentenced, she had less than a week of prospective jail time.

Performance involves normalizing and disciplinary rites defined by the content and form of the program. But in misdemeanorland, conformity with the form of program rites becomes more important than the initial purpose of its content. For example, the prostitution program Ariel was offered consisted of six two-hour meetings with different modules on sexual health and safety, mental health and trauma-counseling-service options, and trafficking and drug-treatment services. Alicia, the supervisor in the sex-crimes bureau who monitored the anti-prostitution program, candidly explained that she was well aware that many of the women were still “prostituting on the side” during the program and in fact often showed up to the class directly from work. Whether or not the program causes a change in sex-work practices, the performance offers an opportunity for defendants to prove compliance and governability.

If participants show up late or miss a class, they are in violation of their agreement and sent back to court. Defendants are often given a second and third chance to complete the program, but sometimes the ACD is withdrawn, and they can be resentenced to a violation or a misdemeanor.

Program compliance is evaluated as a performance; the defendant must execute it properly or be sanctioned. As Judge Taylor described how he deals with a defendant coming through for failure to satisfy the condition or make the compliance-court date:

One, you can say — look, I’m giving you a final opportunity. Or you can set bail, which for community service you try not to do. Some of it is repetitive. You know … you’ll see bench warrant issued, bench warranted vacated, bench warrant issued. You see stuff like that. Then you’re going to set bail. But you can increase a couple of things. One, increase the number of community service days. Fine, you got two days? Now you’re doing four. You don’t show up, a bench warrant is going to be issued and you’re going to get picked up eventually. And then you know what? You’re going to do fifteen days in jail.

Programs do not necessarily represent an attempt to withdraw or even reduce a penal response to the conduct or offender. The criminal justice actors promoting programs may embrace a welfarist rationality and may believe that jail and criminal conviction are not always appropriate sanctions for some offenses or offenders. However, they are not necessarily expressing a sentiment that criminal justice engagement with the conduct is itself improper or undesirable. To expect an overall retrenchment of penal power from these programs is to misunderstand the intentions and understandings of actors administering and innovating them.

Explaining the policy regarding women who fail out of the anti-prostitution class, one supervising prosecutor noted, “We have to answer to the community; we have an obligation to people who call up and complain that they do not want to just let prostitution exist in their community.” She went on to say, “When the defendant just keeps bench warranting and not showing up to the program, we have to take a stance and offer a jail alternative. We are a DA’s office in the end; we prosecute cases.”

Programs Are Not Here to Set You Free

Welfarist intentions of programs are often working at odds with other punitive and exclusionary practices of other components of the criminal justice system. Consider Destiny, who had a history of misdemeanor prostitution and narcotics-possession arrests over almost two decades. Her most recent prostitution arrest brought her into one of the Human Trafficking Intervention Courts, where she was offered a disposition of an ACD conditional on successful completion of six counseling sessions.

Destiny unsurprisingly said she preferred counseling sessions to Rikers Island, but she also pointed out that the sessions did little to change her objective circumstances; her only source of formal income was a meager public assistance of $40 a month:

Destiny: Listen… I told [my defense attorney] that I need a job, I need housing. Let’s just say that I don’t turn back into prostitution because I need some easy money, and now that I’m not using, my money could probably go to more beneficial elements.

Q: What did you think [of the mandated treatment sessions]?

Destiny: They really didn’t do anything. They just gave me a MetroCard, really. And some snacks.

Q: Do you feel resentful of what the court did, and what they mandated?

Destiny: No, I don’t. I’m happy about it. But it’s just that these programs are experiments. They just need to take a survey, and they probably don’t have the budget or don’t want to put in the budget. But the women need more. You need at least a stipend once a week, about $200 of stipend or something like that.

What Destiny really wanted to talk about was the fact that she had been made homeless by a drug arrest inside her public-housing apartment the prior year. She explained that she had picked up a John on “the track,” the street where people solicited clients, and they had bought drugs together. They then went back to her apartment to smoke, and, while she was in the bathroom, he opened the door to the police, and she was arrested. Although I did not see the paperwork from the case, she said she was charged with a drug sale and subsequently evicted from the NYCHA apartment she had occupied for the eight prior years.

By the time of the prostitution arrest that brought her into the Human Trafficking Intervention Court, she had been living in a women’s shelter for over a year. She also had been slashed in the face by a John who demanded his money back after an encounter. She said she never felt safe going to the police for protection and so was similarly concerned about her safety and general health. Destiny confirmed that the program was a more pleasant experience than doing time at Rikers, but it did not touch the deep and acute needs for essentials such as housing, employment, safety, or health care:

Q: And did you feel like it was helpful to talk to [the social worker / therapist]?

Destiny: Well, I think it was helpful to talk to the person, yeah. But I don’t feel like they really did anything …

Q: Concrete?

Destiny: Yeah. Except to stop them from locking me up in jail. That’s the only thing they did. But as far as my personal needs?… I am sick. You know, as far as me being an addict and me being mentally ill… The things that I’m going through now, those are things that, like, I did myself. Me going to the doctor, me getting a personal permanent-care physician, a foot doctor, breast exam, blood work. That’s me doing that through WeCARE. Welfare is doing all of that for me right now. They ordered me to do that, because they’re going to see [if she is eligible for disability]. They got me unable to work right now because of my mental condition.

Q: So you’re saying the person you talked to didn’t help you get medical [treatment]?

Destiny: No, they didn’t help me with medical. It’s no kind of extra stipend for us. There’s nothing for us. They had some used clothes, and that’s about it. That’s it. That’s it. It’s going to make me cry. [Cries] Nobody doesn’t do nothing for you. You have to do everything for yourself.

Q: [I am so sorry.]

Destiny: I’m scared. Because I don’t want to go back out there. [Cries] I was almost killed.

Q: [I’m so sorry.]

Destiny: But this is what the court wanted. So I did what they told me to do. Leave me alone, and I could be free. But you’re never really free.

Programs are not intended to free the subjects of misdemeanorland. They are deployed and circulate in an adversarial criminal justice system where they present as feasible disposition tools precisely because they demand a series of performances. These techniques of performance seek normalization but do not involve constant retraining and supervision: it entails a command and a sanction-backed compliance check.

Gresham Sykes famously identified the “defects of total power” inside of prison as lying in the limits of physical violence and the deficiency of the guard’s legitimate moral authority. In misdemeanorland, one of the defects of disciplinary power lies in the inadequate capacity of police and courts to constantly monitor and control the multitudes of people arrested for low-level offenses and in the pushback of defense agents and defendants seeking to limit the reach of penal power.

The penal technique of performance allows court actors to ration scarce social control resources according to a logic of risk and desert. Defendants must prove some capacity for self-governance by performing certain actions terms laid out by the court — arrive on time, sit and wait quietly, go to a program, complete community service — and earn either leniency or sanctions depending on how they perform.