Malave on Criminal Court Administrators

Evelyn Malave (Hofstra University - Maurice A. Deane School of Law) has posted Criminal Courteaucracy (American Criminal Law Review, Forthcoming) on SSRN. Here is the abstract:

 

Scholars have increasingly recognized that criminal courts in the age of mass incarceration, particularly lower criminal courts, have effectively shifted from an adjudicatory system of justice to a managerial system of justice. Rather than adjudicating guilt or innocence, criminal courts are engaged in risk management and social control. However, criminal courts literature has almost exclusively focused on judges, prosecutors, defense attorneys and their roles in the adjudication of criminal cases. This Article will focus instead on the managerial function of criminal courts by shining a spotlight on a less-scrutinized actor: criminal court administrators.

Through an in-depth case study of administrative actions in New York, this Article will explore how court administrators co-opt the tools of the court system—including bail, adjournments, and orders of protection—to tighten the net of social control around criminal defendants. Crucially, these administrative actions extend judges’ ability to incapacitate and surveil criminal defendants—despite apparent conflicts with statutes, higher court decisions, and defendants’ constitutional rights.

At a time of massive reckoning with the criminal legal system, this paper will conclude that understanding the unique role of criminal court administrators in managerial criminal courts is necessary to navigate the best path forward for change.