by David M. Reutter

This Paper “is the first to provide an in-depth analysis of the role criminal court administrators have played in the shift from criminal courts as sites of adjudication to criminal courts as sites of social control,” contributes to the conversations “about the failure of criminal courts to live up to due process norms – and the effect that failure has on perpetuating mass incarceration and racial disparities in the criminal legal system.” It argues that “court administrators are under-recognized actors when it comes to understanding the way that criminal courts function as sites of social control.”

“Criminal Courteaucracy”(the “Paper”) was authored by Evelyn Malavé, an Associate Professor at Maurice A. Deane School of Law at Hofstra University. The 67-page Paper contains four parts. This article aims to review and liberally highlight the major points of Professor Malavé’s June 5, 2023, Paper.

Her Paper utilizes New York City as a case study. She said “focusing on New York permits a level of in-depth analysis that would not be possible by widening the lens to include more jurisdictions.” Additionally, Professor Malavé “worked for several years as a public defender in New York City, allowing access to the detailed information about administrative actions required to conduct this type of study.”

The first part introduces the reader to The New Penology and the Managerial Shift in Courts. America’s court system was created to be adversarial, “which involves equally matched adversaries vigorously competing to uncover the relevant facts and ultimately advocate before a jury for the correct disposition of a criminal case.” Yet, as the Supreme Court of the United States has recognized, “criminal justice today is for the most part a system of pleas, not a system of trials.” [See: April 2022 CLN, cover story]. Over 98% of criminal cases end in pleas.

“The high rate of plea bargaining has been linked to several factors, including vast unchecked prosecutorial power, the expansion of criminal law, underfunded defense counsel, and judges who fail to hold prosecutors to account for misconduct, punish defendants for exercising their right to trial, or set unaffordable bail on as a means of keeping defendants detained pretrial.” Professor Malavé wrote, “The failure of the adversarial system to live up to the textbook ideal thus has serious implications for the ability of courts to accurately achieve their supposed purpose: the accurate adjudication of guilt or innocence and imposition of punishment.”

In 1992, Malcolm M. Feeley and Jonathan Simon identified a shift in the orientation of criminal justice system towards “a new penology,” which is concerned with the management of risk. This new penology encompasses the entire criminal legal system, “from policing tactics that focus on the prevention of crime, to the pervasiveness of ‘evidence-based’ risk assessments, which are now utilized at every stage of a criminal case – including bail, sentencing, and parole.”

“While the old penology used the language of ‘retributive judgment and clinical diagnosis,’ the new penology’s language is that of probability and risk,” wrote Professor Malavé in summing up other publications. “Under the new penology, the goal [is] no longer to eliminate crime and rehabilitate defendants, but rather to make crime ‘tolerable’ through ‘systematic conditioning.’”

This shift provided a framework to explore collateral consequences, electronic monitoring, and other forms of technological restraint, and arrest. Thus, scholars have focused on how criminal courts have “shifted away from the adjudication of guilt or innocence and towards sorting defendants based on their level of risk and monitoring and sanctioning them accordingly.”

In the article “Misdemeanors,” Alexandra Natapoff claimed the misdemeanor process is “less about establishing guilt under law” than “identifying, labeling, and controlling disadvantaged and disfavored populations,” beginning with police, prosecutors, and courts “iteratively marking and keeping tabs” on deemed risky, even those who may never actually be convicted of a crime. See: 85 S.Cal.L.Rev. 1313 (2012).

Professor Malavé then turned to the Managerial Model outlined in Issa Kohler-Hausmann’s work, Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing (2018). “The key difference between the managerial model of justice and the adjudicative model is that the driving questions for court actors are not ‘what happened in this case?’ and ‘did the defendant do it?’ but ‘what do we do with this case?’ and crucially, ‘is the defendant a manageable person?’” wrote Professor Malavé.

An assessment is made by judges and prosecutors to determine the level of sanctions and/or monitoring that is appropriate. They use police and court records to “construct a profile” of the defendants “governability.” These judicial actors use legal and procedural tools to exert social control.

One tool is “Marking,” which “consists of the accumulation of official records regarding a person’s contacts with the criminal legal system and their behaviors.” Another tool is “Procedural hassle.” It uses “the degradation of arrest and police custody, the stress and frequency of court appearances, and the opportunity of lost work” to provide “an opportunity for court actors to observe how defendants withstand the hassle as a means of judging their governability.”

Finally, under the “additive imperative,” the “strength of the penal techniques applied to a defendant – the severity of the marks, the amount of hassle, and the number and difficulty of the demands of performance – increases with each additional encounter the defendant has with the criminal legal system, and/or each time they fail to ‘perform.’”

While Kohler-Hausmann’s Managerial Model represents a study of misdemeanors in New York City, “the penal techniques of marking, procedural hassle, and performance are relevant to felonies as well,” wrote Professor Malavé. “For example, both prosecutors and judges in drug courts can be viewed as employing the penal technique of performance when they require defendants to complete drug treatment programs or face steep sentences.”

“One key reason to be troubled is that the managerial project represents the ‘policeification’ of the courts,” Professor Malavé wrote in noting that Kohler-Hausmann’s presumption of social control that is described as a key feature of the managerial model animates policies such as “Broken Windows” policing.

That New York City policing policy involves targeting neighborhoods of color deemed to be high crime, despite statistics suggesting otherwise. Practice has demonstrated that policing “target[s] poor neighborhoods in cities – neighborhoods that are disproportionately Black and Latinx. As a result, the people who are hauled into court to prove their governability are disproportionately poor and Black or Latinx.”

The societal harm here is that “rather than serving as a check on potentially abusive or discriminatory policing tactics, courts instead complete the sorting process those same policing tactics began, spitting out defendants with records that reflect their assessed level of governability. Then those same defendants are policed again, and the cycle continues.”

Professor Malavé took a different approach than most scholars when she examined the framework of the new penology. Scholars have trained their focus on the actions of the traditional “court-room workgroup” – the prosecutor, defense attorney, and trial judge.

“In this universe, criminal procedure and penal law have a role to play, of course, but not as a guide or manual, but rather as a set of power-conferring rules that establish a ‘menu of authorized actions’ court actors may select to achieve their goals,” wrote Professor Malavé. “However, what is missing from this portrait is an understanding of the court system is a more complex ecosystem with its own rules and policies that, unlike criminal procedure law, do act as a manual and guide for judges.”

“Court administrative rules and policies are often hidden away from the public, and may not be challenged by defense counsel, even when they often affect defendants’ rights – and on a much larger scale than the practices of an individual judge,” continued Professor Malavé. “Thus, it is all the more important to examine what lessons they hold for how we understand how criminal courts – and criminal law – works on the ground.”

Part two of the Paper “introduce[d] the concept of the ‘courteaucracy’ as the hierarchy of judicial and non-judicial staff responsible for creation of administrative rules and policies in any given court system.”

“[E]very court system in the United States has some type of administrative component, ranging from a single presiding judge and a few administrative staff to a complex hierarchy of administrative judges, supervising judges, court attorneys, clerks, and other non-judicial staff,” according to Professor Malavé. “‘Courteaucracies’ are ultimately responsible for supervising day-to-day operations of the courts – and charged with ensuring that the way criminal courts operate in practice comports with due process.”

In New York City, the top of the hierarchal system is the Chief Administrative Judge, who has four Deputy Chief Administrative Judges. There are several more layers of courteaucracy below them.

The Chief Administrative Judge has broad authority to “adopt administrative rules for the efficient and orderly transaction of business in the trial courts,” Professor Malavé observed. Those rules include policies for court employees and “when and how a case may be transferred from a local criminal court part to a mental health court part. The rules also address such topics as the retention and disposition of court records, electronic court appearances, and mandatory caseload activity reporting.”

Administrative rules are subject to notice and comment. The courteaucracy denies due process notice and hearing requirements when it issues Operational Directives and Confidential Memorandums. The former “are utilized to implement policies and procedures that improve the efficiency of criminal court…. Confidential memorandums are issued by the Counsel’s office to judges in the court system to provide ‘context on cases that have potential significant operational impacts on the court.’”

Then, there are unwritten rules that are focused on “processing” cases at maximum speed. One example is the practice of court staff, including judges and court officers, rushing defense attorneys and their clients, so that defense attorneys may only be given a few minutes to review the file of someone they are assigned to represent, or may be asked to simultaneously review the file while representing the person. The “overly-zealous” attorneys who push back on these rules “will often be punished – and the punishment can range from rudeness to rulings that harm clients.”

The Paper then examined how some administrative actions are in tension with statutes, court decisions, and constitutional rights. In 2019, New York passed bail reform legislation. It created an entire category of offenses that are no subject to cash bail, including the majority of misdemeanor and non-violent felonies. An exception was made for those who were rearrested on another non-qualifying offense, which permits judges to revoke defendants’ release status on their initial case and set bail. Those cases require an evidentiary hearing that requires proof that there is “clear and convincing” and “relevant and admissible” evidence the defendant committed the second offense.

This evidentiary hearing was the subject of the New York Courteaucracy’s Operational Directive 2020-04. It “utilizes the warrant power to effectively circumvent defendants’ rights, under the bail reform legislation, to release pending their hearings,” wrote Professor Malavé. “The result is that all defendants with indicted felonies who are rearrested are held, not just the defendants who qualified for seventy-two-hour remand” for rearrest for certain violent felony offenses under the bail reform legislation.

In cases where the rearrested is unindicted, “the Directive simply orders the arraignment judge to conduct the bail modification hearing as part of the defendant’s arraignment.”

“On the surface, this order might not seem to pose any issues,” noted Professor Malavé in explaining the on-the-ground effect of the Directive. In arguing the Directive violates the right to counsel, she points to N.Y. Crim. Proc. Law § § 510.10(2) (McKinney (2022), which provides that “[a] principal is entitled to representation by counsel … when a securing order is being considered and when a securing order is being reviewed for modification, revocation or termination.”

A second issue is that “defense counsel in arraignments not only has very little notice to prepare for the hearing, but they also have no knowledge of the case that is the subject of the modification hearing.”

Remember, these procedures happen within New York City’s fast-paced and hectic arraignment room, which “may have between one hundred and two hundred cases to be arraigned on a shift that has about six hours of operational court time,” stated Kohler-Hausmann’s report.

The Directive, therefore, limits “defense attorneys to mere minutes,” making it impossible for them to competently exercise the defendant’s right under Criminal Procedure Law § 530.60(2)(c) to “cross examine witnesses and [ ] present relevant, admissible evidence” at the bail modification hearing.

For defendants, the Directive ultimately harms them “by either subjecting them to illegal pre-trial detention or by forcing them to proceed with crucial hearings without their counsel of record or being illegally remanded,” argued Professor Malavé. She noted Blacks are more likely than whites to face drug charges; Broken Window polices concentrate law enforcement resources in communities of color; and “bail is also already more likely to be set on Black and Latinx defendants compared to their white counterparts.”

National statistics show that “individuals with multiple arrests in one year – in other words, those most likely to be subjected to the Directive – are more likely to be poor and Black,” observed Professor Malavé. “Thus, the Directive does not just undermine bail reform and defendants’ constitutional rights, it also multiplies the effect of already existing racial disparities in the system – disparities which bail reform was intended to remedy.”

Stakeholders received notification of the Directive a week before it became effective. Indigent defender organizations wrote a letter to the New York City Courteaucracy, arguing that the Directive conflicted with the bail reform statute, the Sixth Amendment right to effective assistance of counsel, and ethical rules and that it impermissibly delayed arraignment. The letter fell upon deaf ears, and there is no legal means to challenge it. Even if defense organizations were inclined to challenge, they may be compelled to do more with less and obliged to cover a whole new set of cases under already strained budgets and manpower.

Another example of the Courteaucracy running amok was displayed in the “Crawford Memorandum, a confidential court memorandum which was leaked to the press.” It addressed the decision in Crawford v. Alley, 150 N.Y.S.3d 712 (N.Y. App. Div. 1st Dep’t 2021). The Crawford Court held that whenever a full order of protection might cause a defendant to “suffer the deprivation of liberty or property interest,” due process requires that the court conduct an evidentiary hearing to determine whether the temporary order of protection should be issued.

“Crawford itself was a response to the practice of criminal court judges in New York routinely ‘rubber-stamping’ prosecutors’ requests for orders of protection – which prosecutors, in turn, requested in every case with a complainant,” noted Professor Malavé. “This ‘rubber-stamping’ occurred even where the protected party did not want the order to be issued, where there was strong evidence of innocence, or where the order was likely to cause the defendant to become homeless or lose access to their children.”

Professor Malavé acknowledged Crawford “does not mandate testimonial hearings.” She did, however, argue the Crawford Memorandum “describes the decision, and directly advises judges on how to interpret it. Specifically, the memorandum states that Crawford ‘should not be read as to require live witnesses and/or non-hearsay testimony’ and that ‘courts should resist – unless absolutely necessary and appropriate – anything approaching a full testimonial hearing’ because such hearings would endanger the safety of domestic violence victims and have ‘significant negative operational impact.’”

A coalition consisting of public defenders from Neighborhood Defender Services, Bronx Defenders, Brooklyn Defender Services, the Legal Aid Society, and New York County Defender Services banded together to monitor implementation of Crawford. “Following the issuance of the memorandum, the coalition observed that judges were routinely rejecting requests for live witnesses, including in a case where the prosecutor acknowledged that the complaining witness had retracted her statements and the complaining witness was present and ready to testify,” wrote Professor Malavé. She further observed that some judges were holding the hearings at arraignment, which is contrary to the directive in Crawford that requires the hearing be “on notice.” The result is many defendants face homelessness and family separation.

No one outside the court system is supposed to know about confidential memorandums. When a defense attorney brought up the Crawford Memorandum, the court got very prickly and told the attorney, “I have a copy of the memo and it states, on the top, that it is confidential and for the internal use of the court system only. I am not going to let you discuss this memo any further.”

This interaction speaks directly to the difficulty “for defense attorneys, much less members of the public, to challenge administrative actions,” declared Professor Malavé. “Litigating an unlawful policy and winning simply generated another unlawful policy – in the form of the Crawford Memorandum.” How many other confidential memorandums exist cannot be known, but Lucian Chalfen, chief spokesperson for New York City’s Office of Court Administration, indicated that court administrators had potentially written many memoranda instructing judges on how to interpret cases with “operational impacts on the court.”

Professor Malavé also detailed the 2021 Gun Initiative and Kings County Discovery Order as examples of the Courteaucracy creating policies and rules that impact defendants’ rights. The Gun Initiative shortens timelines for hearing and trial for defendants with gun charges, which Professor Malavé argued creates “a risk that defendants could be pressured into plea deals that did not accurately reflect the strength of the cases against them, or even wrongfully convicted altogether.”

The Discovery Order was in response to 2019 legislative reforms that placed the burden on the prosecution to “certify” that they provided the defense with “open file” discovery early in the case and tied obligations for discovery to the speedy trial clock. The Discovery Order improperly shifts “the burden from the prosecution to the defense” by requiring a joint letter that outlines any discovery disputes, thereby relieving prosecutors from the requirement to “certify” that discovery was complete and making it “more likely [for defendants] to lose critical discovery violation-related motions to dismiss.”

Part three of the Paper considers dangerous defendants and dangerous backlogs. Professor Malavé acknowledged that “exerting control over resources is exactly what court administrators are meant to do.” However, “the Bail Directive, the Crawford Memorandum, and the Gun Initiative – also reflect a concern with dangerousness and safety as well.” In the Crawford Memorandum, that concern was facially evident, and in the others, the Courteaucracy’s “concerns regarding dangerousness – or the perception of dangerousness – is only evident based on an understanding of the political context of the rule and its impact on practice.”

In the case of bail reform, “a provision to permit judges to detain defendants based on dangerousness had been part of an earlier version of bail reform and was the subject of intense debate,” noted Professor Malavé. “However, the provision was ultimately rejected in favor of the compromise of permitting money bail for the most serious offenses most likely to signify a potential threat to public safety, and in certain situations where the defendant was rearrested” and afforded a “bail modification hearing.”

The Bail Directive was issued “in the midst” of a “politically charged environment, with many critics both within the court system and outside of it labeling the bail reform dangerous and calling for a new reform to permit dangerousness to be explicitly considered – even as it never stopped being implicitly considered,” Professor Malavé said. By incapacitating certain defendants before hearings or holding hearings during arraignment, the Bail “Directive preserved judges’ discretion to act when they perceived the defendants before them to be dangerous.”

Professor Malavé concluded the fourth part of her Paper by prefacing how the Courteaucracy has imposed social control in New York City. “The Bail Directive facilitates and protects the use of bail as a sanction for ‘ungovernable’ and ‘dangerous’ defendants. The Crawford Memorandum protects the use of blanket orders of protection as a means of monitoring ‘dangerous’ defendants,” she argued. “The Gun Initiative orders court actors to impose procedural hassle through frequent court dates. And as administrative action that aims to protect public safety by eradicating backlogs, the Gun Initiative also reinforces the presumption that all criminal cases will end in some form of social control.”

An “under-recognized source of power” lies with administrative decision-making. “Whereas any single judge may influence only the outcome of the cases before them, administrative rules have the power to affect the functioning of the entire system,” concluded Professor Malavé. “Thus, it matters a great deal what principles animate and underlie administrative decision-making in criminal court”

The Courteaucracy “responds to and reinforces concerns about criminal defendants perceived as dangerous – through facilitating, protecting, and ordering higher levels of social control for those defendants,” said Professor Malavé. “I call this guiding principle of court administration action the ‘social control framework’ in order to distinguish it from other frameworks that could potentially animate decision-making instead.”

Beyond the impact upon defendants, Professor Malavé is concerned “because of the way the framework impacts judges and criminal law itself.” Administrative actions that “instruct judges on how to interpret law – threaten to usurp the judicial function by shaping how judges interpret new statutes and court decisions, and thus influencing the development of precedent.” That those actions occur without “any public input or judicial review” is “deeply concerning.”

Professor Malavé used New York City as a case study because it provided “particularly fertile ground.” It was her hope “that this [Paper] will be the first of many such explorations.” In issuing a call for more case studies that provide “a deeper understanding of the data-driven case management regime that has increasingly shaped court administration over the past several decades.”

“[W]hile establishing processes of review for administrative actions is undoubtedly important in terms of reining in court administrative power, it is even more important for advocates to pull back the curtain on administrative power to shift the public understanding of how criminal courts operate.”  

Source: Criminal Courteaucracy,by Evelyn Malavé (forthcoming, American Criminal Law Review 2024).

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