The Process Is Still the Punishment: Low-Level Arrests in the Broken Windows Era

Purpose: This Article examines the experience of contemporary arrestees in New York City to identify impositions they face in the processing of charges against them. In his seminal 1979 study The Process Is the Punishment, Malcolm Feeley documented severe administrative burdens faced by arrestees before judgment of guilt or innocence. I investigate the persistence of this dynamic in light of modern "proactive policing" tactics that bring millions of people into contact with the criminal justice system. Methods: I match records of police encounters with court data on arrest processing to construct a unique dataset tracing more than 100,000 arrests from initial police contact through the disposition of charges. I use descriptive statistical analyses to estimate time, confinement, and other burdens faced by arrestees. Results: While most low-level arrestees avoid severe formal sanctions, they face considerable burdens before disposition of their cases. These burdens vary significantly by the courts in which cases are heard. Most arrests are disposed of with low-level plea bargains. Conclusions: The burdens faced by arrestees before guilt or innocence is determined, coupled with a heavy use of plea bargains, raise concerns that contemporary criminal procedure may undermine the adjudicative ideal of the courts. These findings also suggest arrestees face significant presentencing challenges requiring more detailed examination.