The Role of Dismissal in the American Criminal Court: Court Theories Revisited

Abstract

This is an inquiry into the role of dismissal in criminal adjudication, a neglected area of study in the modern criminal court literature. The article presents a historical review of the relevant literature that underscores the prevalence of dismissal as a principal criminal case disposition in American courts. Moving into an explorative direction, the essay examines the utility for understanding dismissal of several theoretical perspectives that more generally have been proposed to explain criminal adjudication and court operations. These are: (a) the public safety perspective, in which dismissals are explained by defendants’ risk attributes; (b) the courtroom-as-workgroup perspective, in which dismissals are the product of the organization of the courtroom workgroups; (c) the process-as-punishment perspective, in which dismissals represent the outcome of a process which itself represents the punishment; (d) and the legal or due process perspective, in which legal, procedural-based explanations account for dismissals. Review of available empirical support reveals that as applied to the dismissal phenomenon accepted court theories are in need of empirical testing, and the article provides several directions for future investigations that would help establish their validity. The implications for justice goals of the common dismissal result in criminal adjudication through the prisms of these four perspectives are considered.

KEYWORDS::

• dismissal
• criminal adjudication
• court theories

ACKNOWLEDGMENT

The author wishes to acknowledge the very helpful suggestions and careful review of this work offered by the anonymous reviewers.

Notes

Note that cases originating with arrest but rejected by prosecutors as a result of prosecutorial screening (i.e., arrest attrition rates) are outside the scope of this inquiry. Acknowledging that the charging and filing decisions act as previous screening of the caseloads that the courts receive and that this prior screening is highly likely to vary across jurisdictions, this investigation is interested in understanding the nature and implications of the decision to completely drop a criminal case once underway in the judicial process—when assumedly the prosecution deemed the case ready for adjudication. Similarly, this article is not concerned with bargaining dynamics because dismissal is viewed here as a final disposition, in which all charges against a defendant are dismissed. Again, this is not meant to negate the vast and significant role that plea bargaining plays in the disposition of cases in American courts.

For more relevant data, see the next section reviewing the status/prevalence of dismissal as a criminal case outcome.

For clarification purposes, it should be noted that in many jurisdictions the diversion lexicon might indicate an overlap between diversion and dismissal. For example, in some jurisdictions, diversion occurs under the name of “adjournment in contemplation of dismissal” (ACD or ACOD; e.g., New York), in others as “probation before judgment” (PBJ; e.g., Maryland). Other commonly used terms are “pre-trial diversion” or “deferred adjudication” or “deferred prosecution.” In these cases, diversion, if successful, will technically result in dismissal of charges. The current inquiry is not concerned with such dismissals, resulting via diversion, but only with dismissals occurring as part of the normal (mainstream) adjudication process. The key distinction is that diversion entails that alleged offenders remain under the criminal justice system's control in some form of conditional status and bear some, albeit provisional, form of liability (see ABA Standards on Pleas of Guilty, Part IV, relating to diversion and other alternative resolutions; ABA, 1997). This sets diversion apart from both acquittal and [outright] dismissal. Another distinction is that the use of diversion is generally restricted to specific categories of crimes or offenders (e.g., misdemeanor marijuana cases—see New York Criminal Procedure Law, Section 170.56, or Philadelphia's Small Amounts of Marijuana Program (McCoy, Phillips, and Purcell 2010) usually seen as less serious, and whose adjudication via the regular process would unnecessarily strain the courts’ resources. Perhaps the most adequate way to describe diversion from the perspective of both the offender and society's interests is as an “alternative resolution,” as the ABA standards on guilty pleas do, in which both parties have something to gain, which is not the case for dismissal or acquittal, when the prosecution's case fails before or during/at the trial.

As a non-conviction disposition reserved generally for special circumstances, diversion, too, may occur arguably more often than expected (i.e., when used as “net-widening”)—a topic worthy of investigation on its own merits.

The term “survey” as used in reference to those studies refers to the verb (“surveying,” as in conducting a comprehensive review) as opposed to the noun (as in poll, or questionnaires administered to people). The data relied on in those studies did not come from surveys but from official statistics.

The term was borrowed from the life insurance actuary (Moley 1929, 27–29).

Consistent with the survey's broad scope, the reporting of this finding does not distinguish between outright dismissal (of all charges) versus a reduction in charges only.

The ABF survey has its origins in the early 1950s, when the Supreme Court Justice Robert H. Jackson called on the American Bar Association to take steps to address what was perceived as an alarming law enforcement crisis in America, that threatened not only the ability to control crime but also individual rights and freedom (Walker 1992). For a detailed account of ABF Survey's origins and reasons for late dissemination, see Walker (1992).

The rest of the dispositions were 8 percent bond forfeiture and termination and 52 percent as plea, and no trials.