Sidestepping Justice? Adjournments in Contemplation of Dismissal in Misdemeanor Court

By Worden, Alissa Pollitz; McLean, Sarah J. et al. | Albany Law Review, Spring 2013 | Go to article overview
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Sidestepping Justice? Adjournments in Contemplation of Dismissal in Misdemeanor Court

Worden, Alissa Pollitz, McLean, Sarah J., Kennedy, Megan, Albany Law Review


In the public mind, justice is served when defendants' rights are observed, when the legal process arrives at more, rather than less, accurate verdicts, and when the consequences of illegal behavior correspond to society's sense of fair sanctions. The goodness of fit between these ideals and reality is on public display in jury trials, sentencing reports, and appellate proceedings. But a great deal of adjudication--misdemeanor case processing--happens below this public radar, and is seldom subject to empirical research. Little is known about how prosecutors and judges handle cases in lower courts, where dispositions may involve options such as diversion and conditional dismissal that blur the legal lines around judgments of guilt. This article explores dispositions of partner violence cases in three city courts in upstate New York, focusing on one such procedure--adjournment in contemplation of dismissal--that simultaneously treats defendants as de facto guilty (by imposing a waiting period of "good behavior" before final disposition), in exchange for a contingent promise to withhold conviction and permanently seal public records of the charges or resolution. (1)

In principle, these adaptations of the pretrial process are justifiable when the consequences of a conviction and resulting sentence are clearly outweighed by the negative effects of such decisions for defendants, victims, and the community. Often the criterion or rationale for these dispositions is "the interest of justice." (2) This sort of diversion is both practical and sensible in many individual cases. For example, first-time offenders who, having violated the law, nonetheless have produced no harm and who exhibit remorse might appropriately be given an opportunity to avoid the stigma of conviction. However, when these dispositions become normative in any particular type of case, we might reasonably investigate the factors that are associated with these decisions, and consider their implications not only for defendants but for victims and the larger community as well.

In New York courts, adjournment in contemplation of dismissal (ACD) has long been a common disposition in domestic violence charges. (3) Historically these cases, which often involve physical abuse, threats, and property damage, have been marginalized by the legal system, often trivialized as "disputes," "mutual combat," or "family problems" rather than criminal acts. (4) Beginning in the 1980s, reformers argued for police and court practices that focused on defendant behavior and culpability rather than relationship dynamics. (5) By the mid-1990s, like many other states, New York had enacted a series of reforms aimed at increased enforcement and prosecution, and greater responsiveness to the specific needs and concerns of partner violence victims. (6) The goal of these reforms included increasing both the accountability of perpetrators and the accountability of the criminal justice system to victims and potential victims. (7)

Yet very little is known about the circumstances that result in these dispositions, which paradoxically imply guilt in the courtroom but sidestep a conviction, punishment, and public record of arrest. We suggest that routine use of ACD might constitute a misstep of justice if this outcome (1) is associated with offender or case characteristics that are legally irrelevant to a verdict, or (2) is not associated with legally relevant factors (such as evidence and blameworthiness) that ought to distinguish between convictions on the merits and acquittals or dismissals. We also suggest that ACDs might be judged missteps of justice if they appear to be little more than reifications of earlier legal decisions (such as bail decisions and appointment of counsel).


Research on the prosecution and adjudication of domestic violence cases is uneven, sometimes contradictory, and ultimately inconclusive.

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Sidestepping Justice? Adjournments in Contemplation of Dismissal in Misdemeanor Court


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