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date: 08 August 2020

Criminal Misdemeanor Theory and Practice

Abstract and Keywords

The misdemeanor system is a powerful governance tool. Comprising the vast bulk of the U.S. criminal process, it exerts enormous influence over the disadvantaged populations that are its primary clientele, and profoundly shapes the general character of American criminal justice. Characterized largely by speed, informality, and law enforcement discretion, the petty offense process generates millions of criminal convictions and burdensome punishments in ways that depart significantly from the standard due process model of adversarial adjudication, with special implications for the poor and people of color. This article provides a theoretical overview of the petty offense process and its legal and institutional structures, and explains its sociolegal significance for the criminal system as a whole.

Keywords: misdemeanors, petty offenses, probation, racial disparity, assembly-line justice, collateral consequences, social control, mass incarceration, culpability, due process

I. Introduction

Misdemeanors constitute the bulk of the U.S. criminal justice apparatus, and they powerfully shape its institutional character and socioeconomic influence. Encompassing the vast majority of arrests and criminal cases—80 percent in the United States—petty offense enforcement is the mechanism through which the criminal system exerts its widest and in many ways deepest forms of social penetration and control. Reaching the most common behaviors and casual encounters, misdemeanor criminal enforcement empowers the state to touch, mark, burden, punish, and supervise millions of people, many of whom have not engaged in particularly culpable or harmful conduct. Because the petty offense process is largely informal and lacking in due process, it is relatively easy for the state to exert these forms of power and control, particularly over socially disadvantaged individuals and groups who lack legal and political protections.

Misdemeanors also pose significant challenges to traditional criminal legal theory. While they are formally categorized and punished as “crimes,” many misdemeanors are not justified by individual culpability, mens rea, or harmfulness in the same ways as serious offenses. Nor are they subject to the traditional constraints of due process and rule of law that legitimate the exercise of state coercion in connection with felonies. Rather, the petty offense process is best understood as quasi-criminal or regulatory, an enormous, highly discretionary, and often informal apparatus of social marking and punishment, heavily inflected by class and race, that only partially adheres to the requirements of culpability and due process that traditionally constrain criminal law and distinguish it from other forms of state power.

This article frames and theorizes the misdemeanor system as a state institution with unique commitments to social control, race, and class stratification, and the expansion of the criminal process more generally.1 I use the specifics of the United States’ petty offense process to show the concrete rules, practices, and institutional mechanisms through which the process effectuates these commitments, and how it profoundly influences the overall character of the criminal system more generally.

II. Historical Perspective

The misdemeanor process is an old governance mechanism: the petty offense, infraction, citation, ticket, surety, and other minor charging forms have long been deployed as quasi-legal tools for managing, labeling, and extracting labor and money from disfavored populations. For example, eighteenth-century England deployed an array of what Blackstone labeled “police offenses,” which included numerous criminal sanctions against “rogues,” “vagabonds,” and the unemployed. “Idle and disorderly persons” were punished by a month in prison.2 In the absence of express laws, courts stepped in to create “common law misdemeanors,” which criminalized any behavior deemed offensive to the public welfare, economy, or good order of the state.3 As Markus Dubber explains, such police offenses and common law misdemeanors represented the heart of the police power—the state’s coercive sovereign authority to regulate its subjects’ behavior, labor, and status.4

In the mid-nineteenth century, after the American Civil War, misdemeanors were central to the Southern effort to preserve white social and economic supremacy. Southern jurisdictions created new vagrancy statutes and other misdemeanors to criminalize African Americans and “sentence” them to hard labor on chain gangs, effectively maintaining the institution of slavery through criminalization. Tens of thousands of African Americans were arrested for vagrancy—the offense of idleness or not being able to prove employment—and sold through the criminal courts to coal mines, chain gangs, farms, and factories as cheap labor. This practice of industrial slavery lasted over 50 years until World War II.5

Vagrancy statutes persisted and were widely used to criminalize and relocate the poor and unemployed. In 1960, Justice William Douglas described how pervasive the urban vagrancy enforcement apparatus had become, and how it turned heavily on class and race: “[P]eople accused of vagrancy … are not the sons of bankers, industrialists, lawyers, or other professional people. They … come from other strata of society, or from minority groups who are not sufficiently vocal to protect themselves, and who do not have the prestige to prevent an easy laying-on of hands by the police.”6 In 1973, the U.S. Supreme Court declared such statutes unconstitutionally vague.7

Although vagrancy has fallen into disuse, other types of misdemeanors such as loitering and trespass, and civil injunctions such as exclusion orders and curfews, are still widely deployed as urban spatial regulators. They are used to keep the homeless, prostitutes, gang members, and drug-addicted individuals out of certain neighborhoods, to control public housing or other urban spaces, and manage various disadvantaged populations. As Katherine Beckett and Steve Herbert describe, “Increasing swaths of urban space are delimited as zones of exclusion from which the undesirable are banned…. In many [] U.S. cites, exclusion orders that make mere presence in a public space a crime are regularly imposed.”8

In sum, petty offenses have a long history as social and economic governance tools deployed in a wide variety of ways. Modern misdemeanor practices continue to overlap with these older regimes.

III. The Scope of the Modern U.S. Misdemeanor Apparatus

The U.S. misdemeanor system derives its influence from its size, its informality, and the wide variety of punishment forms through which it impacts its many subjects.

Misdemeanors make up the vast majority of the American criminal system. Comprising approximately 80 percent of all arrests and 80 percent of state dockets, the petty offense process defines the criminal experience for most Americans, determining how the bulk of U.S. criminal convictions will be conferred and on whom.

Structurally speaking, the misdemeanor system fulfills the core, complex governmental function of responding to and regulating low-level antisocial conduct. And like any large-scale social institution, the system is not monolithic. Misdemeanor offenses include a wide variety of crimes, including drug possession, simple assault, driving on suspended license, petty theft, loitering, trespassing, and disorderly conduct. Some minor offenses aim at conduct that is harmful or culpable in the classic criminal sense—domestic violence, for example, or driving under the influence—making such misdemeanors look very much like small-scale felonies. At the federal level, misdemeanors typically receive due process comparable to felonies: counsel is routinely appointed and hearings are held.

The wholesale power and social significance of the misdemeanor process derives not from this relatively small class of crimes and cases, but from the widespread state and local enforcement of minor offenses committed by millions of individuals, enforced in ways that have systemic class and racial salience. The vast majority of misdemeanors criminalize common, low-level behaviors that involve small harms, or sometimes no harm at all, that are routinely engaged in by large numbers of people. It is this dynamic that generates the greatest societal challenges. Indeed, it raises the question whether the criminal system—rather than some other civil, regulatory, nonpunitive mechanism—should be managing this governance function at all.9

There are no definitive national data on the number or type of misdemeanor cases, since “states vary in whether and how they keep records.”10 The most comprehensive report to date estimates a national docket of approximately 10 million cases, based on an extrapolation from 12 states,11 as compared to approximately 2–3 million felony cases. In 2014 the FBI reported over 600,000 arrests for marijuana possession and 436,000 disorderly conduct arrests,12 although this latter number is almost certainly an undercount since many jurisdictions do not report minor offenses such as disorderly conduct at all.

There are at least three paradigmatic categories of common minor offenses in the United States: (1) driving on a suspended license, (2) marijuana possession, and (3) urban order crimes such as loitering, trespassing, disorderly conduct, and resisting arrest—what might be thought of as modern Blackstonian-type police offenses. Driving on a suspended license, for example, constitutes up to a third of many local dockets. It is an offense that, in effect, criminalizes poverty. It typically occurs when low-income individuals accrue traffic tickets they cannot afford to pay, leading to the suspension of their licenses. Millions of people lose their jobs and are plunged deeper into poverty when they lose their licenses as a result of this dynamic.13 Through offenses such as these, the misdemeanor process functionally singles out the poor and marks them with criminal convictions, which in turn exacerbate their underlying poverty.

Marijuana possession cases—the second paradigmatic category—are the most common U.S. drug offense, and they drive many of the most controversial aspects of the war on drugs. First, they sweep millions of people up into the criminal system for conduct widely perceived as socially acceptable and harmless—a classic feature of the misdemeanor control paradigm and one that triggers long-standing philosophical concerns about mens rea and individual culpability.14 Marijuana possession arrests are also responsible for much of the system’s racial skew. Although whites and blacks use marijuana at the same rates, national arrest rates for African Americans are four times higher than for whites. In some cities, rates are 10, 20 or even 40 times higher.15 Misdemeanor drug enforcement is thus one of the concrete mechanisms through which African Americans are disproportionately criminalized.

Third and finally, order maintenance misdemeanors are the historic vehicle through which the petty offense process exercises many of its social control and redistributive functions. Like Justice Douglas’s now-defunct vagrancy statutes, they are a primary mode through which the system criminalizes homelessness, enforces gentrification, and labels disfavored populations with criminal records. In the United States in particular, petty offenses have a strong racial function. Police use loitering, trespassing, and disorderly conduct arrests to establish their authority over young black men, particularly in high-crime communities, and to confer criminal records on low-income populations of color.

In sum, an important part of the influence of the misdemeanor system flows from its sheer scale—the number of people it touches, the broad and common nature of the conduct that it criminalizes, and its deep reach into disadvantaged populations. Its paradigmatic offenses are tightly tied to class and race-based decision-making, and part of the fabric of social control over disadvantaged and disfavored populations.

IV. The Assembly-Line Process: Fast, Informal, and Discretionary

The misdemeanor system also derives much of its power from its informal, aggregative, and speedy nature.16 The approximately 10 million misdemeanor cases filed every year are rushed through court dockets often in minutes. Defendants are pressured into pleading guilty, typically with little scrutiny of the evidence, earning the system nicknames such as “cattle herding” and “McJustice.” Trials are rare: approximately 95 percent of defendants plead guilty, often at their first appearance in court.17

The petty offense court system has long been recognized for its quick and dirty qualities. In 1979, Malcolm Feeley’s seminal book The Process Is the Punishment offered an in-depth exploration of the New Haven lower court system. Feeley described that court as follows:

[N]ot one defendant in a sample of 1,640 cases insisted upon [trial by jury]; only one half of all defendants journeyed through the criminal process with an attorney at their side…. Even in those cases in which counsel was present, his contribution was questionable. “Interviews” with clients were often little more than quick whispered exchanges in the corridor…. There was little independent investigation of facts…. Arrestees were arraigned in groups and informed of their rights en masse. At times the arrestees were not even aware that they are being addressed. Judges did not always look at them, and even if a judge made an effort to be heard, he could not always be understood over the constant din of the courtroom…. While a few cases took up a minute or two of the court’s time … the overwhelming majority of cases took just a few seconds.18

Surprisingly little has changed since 1979. In 2009, the National Association for Criminal Defense Lawyers (NACDL) conducted the first national study of misdemeanor courts. That report described hasty court proceedings, massive defender caseloads, and what has come to be known as a “meet ‘em and plead ‘em” mentality:

In many jurisdictions, cases are resolved at the first court hearing, with minimal or no preparation by the defense. Misdemeanor courtrooms often have so many cases on the docket that an attorney has mere minutes to handle each case. Because of the number of cases assigned to each defender, “legal advice” often amounts to a hasty conversation in the courtroom or hallway with the client. Frequently, this conversation begins with the defender informing the defendant of a plea offer. When the defendant’s case is called, he or she simply enters a guilty plea and is sentenced. No research of the facts or the law is undertaken. This process is known as meet-and-plead or plea at arraignment/first appearance.19

Scholars who have studied low-level courts in various jurisdictions describe similar phenomena.20

The petty offense process, however, does not begin in the courts. It begins with low-level policing practices that sweep up large numbers of people—often low-income people of color—into the criminal system.21 The process then converts those arrests into convictions, in ways that deviate significantly from the standard criminal procedure paradigm. For example, although prosecutors are supposed to screen arrests to decide whether a crime should be charged, they typically defer to police on minor charges. Defense attorneys are required to educate their clients, evaluate the evidence, and raise legal challenges, but misdemeanor attorneys—if they are appointed at all—typically carry enormous caseloads that make those functions impossible to carry out. Courts are required to provide individuated proceedings to defendants and establish whether there is a factual basis for each guilty plea. In reality, massive fast-moving dockets mean that judges may spend mere minutes—in some courts seconds—on each case. All of these stages add up to a process that begins on the streets and that results in millions of factually and procedurally suspect convictions. Each stage is considered below in turn.

A. Policing

The policing of low-level offenses varies widely, depending on the nature of the offense and the environment being policed. Some minor offenses are handled very much like serious ones. The prevalence of wealthy DUI (driving under the influence) defendants, for example, has generated a robust private defense bar and a litigation culture aimed at challenging evidence of intoxication. This, in turn, pressures police departments to rely on increasingly sophisticated—and accurate—Breathalyzer technology to make drunk driving arrests.

Other sorts of minor offenses are not generated in this way at all. For decades, New York police arrested hundreds of people who happened to be on the premises of public housing projects and charged them all with trespassing.22 Baltimore police are under court-monitored supervision for their long-standing practice of rounding up African American men on street corners and charging them with loitering.23 Illinois police arrest African Americans at a rate seven times higher than whites for marijuana possession, with even higher racial disparities in Chicago.24 Seattle police use minor offenses to arrest and ban homeless people from downtown and other gentrified areas.25

For these types of offenses, misdemeanor policing is doing much more than identifying and punishing perpetrators of specific crimes. It empowers police to detain and arrest individuals based on weak or no evidence, to target low-income, high-crime urban neighborhoods, and to engage in the kind of racially skewed urban policing practices that have generated civil rights litigation and protests around the country. Misdemeanor policing should thus be understood as the first stage of how the criminal process selects and marks individuals based on race, class, neighborhood, and other socially disfavored categories.

B. Prosecutors

At the second stage of the misdemeanor process, prosecutors are responsible for screening arrests to decide whether a formal criminal case should be filed. This is a crucial moment of the criminal process: arrests require only “probable cause,” namely, a “fair probability” of guilt, which by definition is not enough evidence by itself to support a conviction.26 Prosecutorial screening is designed not only to assess whether there is sufficient evidence of guilt to proceed, but whether the case should go forward at all based on equitable, resource, and public policy reasons.27

In serious cases, prosecutors tend to have high declination rates, meaning that screening is robust and most arrests do not convert to criminal charges.28 By contrast, misdemeanor declination rates in many jurisdictions are very low, on the order of 2 percent, a sign that prosecutors are deferring to police arrest decisions.29 When prosecutors do not screen, arrests convert automatically into formal criminal charges.30 Some jurisdictions lack even this weak checking mechanism: police are authorized to file minor charges directly against the individuals whom they arrest. As a result of this procedural dynamic, an individual arrested for a petty offense is highly likely to face formal criminal charges whether or not the evidence merits it.

C. Defense Counsel

Once a person is arrested and charges are filed, the third stage of the criminal process typically consists of the appointment of counsel. Conceptually, the filing of a criminal charge represents the initiation of the formal adversarial process. The government has decided to go after the defendant, so to speak, triggering his or her right to legal assistance. As the Supreme Court has put it, the right to counsel attaches at “the initiation of adversary judicial criminal proceedings. The rule [is a] recognition of the point at which the government has committed itself to prosecute, the adverse positions of government and defendant have solidified, and the accused finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.”31

Misdemeanor defendants, however, often do not get defense counsel. This is for both legal and practical reasons. In fine-only cases where a defendant does not face incarceration, the Supreme Court has held that defendants are not entitled to counsel at all.32 Conversely, if a misdemeanor defendant serves any jail time or is placed on probation which could result in jail time, he or she is entitled to a lawyer.33 In Alabama v. Shelton, the Court held that the right to counsel extends not only to defendants who are immediately sentenced to incarceration but who face the threat of incarceration if they violate the terms of their supervision.34

As a practical matter, however, this constitutional mandate is often violated: courts around the country fail to appoint counsel even when it is legally required.35 Some judges send defendants to go negotiate directly with prosecutors. Others simply refuse to provide lawyers and require individuals to defend themselves. Chief Justice Jean Hoefer Toal of the South Carolina Supreme Court went so far as to instruct misdemeanor court judges to ignore Alabama v. Shelton. As she put it:

Alabama v. Shelton [is] one of the more misguided decisions of the United States Supreme Court, I must say. If we adhered to it in South Carolina we would have the right to counsel probably … by dragooning lawyers out of their law offices to take these cases in every magistrate’s court in South Carolina, and I have simply told my magistrates that we just don’t have the resources to do that. So I will tell you straight up we [are] not adhering to Alabama v. Shelton in every situation.36

Even when counsel is appointed, misdemeanor public defenders are famously overburdened with hundreds, even thousands of cases.37 As described above, this has led to a culture of “meet ‘em and plead ‘em” lawyering, in which defense counsel meet their misdemeanor clients for a few minutes, explain the prosecutor’s plea deal, and get their clients to plead guilty.

In effect, the size and speed of the misdemeanor process impose structural limitations on counsel’s ability to meaningfully defend their clients.38 Once defendants are charged, the hydraulic pressures to keep dockets moving and resolve hundreds of minor cases often make defense counsel complicit in the assembly-line process. In this way, the core constitutional protection of the right to counsel on which the system depends for so much of its legitimacy is largely lacking in the misdemeanor context.

D. Judges

The heart of due process consists of notice and the opportunity for a meaningful hearing.39 In plea cases in particular, the Supreme Court has held that courts must establish that the defendant’s decision to plead guilty is knowing, intelligent, and voluntary, and that there is a factual basis for the conviction.40 But in practice, misdemeanor judges rarely perform these functions. Lower courts are famous for rushing hundreds of petty cases through in bulk with little or no judicial scrutiny of the facts, the defendants’ understanding, or the deals being struck. As a result, judges rarely serve as a meaningful check on errors or injustices that take place in the plea bargaining marketplace.

The judicial demand for speed further exacerbates the cookie-cutter nature of misdemeanor plea bargaining by preventing individuated consideration of legal issues. With hundreds of cases to resolve, misdemeanor judges often deter defense lawyers from filing motions or litigating issues. Former public defender and now law professor Eve Brensike Primus has described judges who simply refused to hear her legal arguments, telling her to “save it for appeal.”41 In Texas, Pennsylvania, and Colorado, some courts refer defendants directly to prosecutors to work out their cases, in effect bypassing the adversarial process altogether.42

In all these ways, each official player at each stage of the misdemeanor process contributes to its speed and sloppy disregard of the law. While of course some jurisdictions deviate from this model, the general result is a system in which many defendants are overwhelmingly pressured to plead guilty to predetermined charges, even if they are innocent or have meritorious issues in their cases. The lack of standard procedural requirements such as evidence, counsel, and judicial oversight distinguish the process from the traditional criminal model of evidence-based, adversarial justice.

V. Punishment

In most jurisdictions, misdemeanors are defined as those offenses for which a defendant cannot receive more than one year of incarceration. More broadly, misdemeanor convictions are often conceptualized as a form of leniency: light punishment in comparison to the threat of felony imprisonment. And felonies are indeed different: the harms of long incarceration are uniquely damaging.43 But misdemeanor punishments can be crushing in their own right. They are controlling, intrusive, and burdensome in ways that are rarely recognized but nevertheless invest great power in the misdemeanor punitive apparatus.

More specifically, the petty offense process imposes punishment in ways that are often cumulatively disproportionate to the crime, and that vary by the social status of the offender. Misdemeanor defendants will often accumulate stigma, fines, supervisions, and other burdens that far outweigh the seriousness of their underlying offense. Moreover, the impact of those punishments—particularly fines—falls more heavily on the poor and those with precarious employment status, effectively rendering misdemeanor punishment a regressive form of social policy.

A. Jail

Most petty offenders are not sentenced to incarceration but rather receive some combination of probation and fines. Those who are incarcerated serve those sentences in jail; prison is typically reserved for felony sentences of a year or more.

While jail is not a common formal sentence, the institution lurks behind each stage of the misdemeanor process and exercises profound influence over the criminal process more generally. As John Irwin wrote in his seminal work The Jail, “[i]n a legal sense, the jail is the point of entry into the criminal system…. [It] was invented, and continues to be operated, in order to manage society’s rabble … meaning the ‘disorganized’ and ‘disorderly,’ ‘the lowest class of people.’”44 Over 11 million people passed through American jails last year; approximately 750,000 are incarcerated in jails at any given time. Only 40 percent of jail inmates have actually been convicted and are serving sentences: 60 percent are pretrial detainees who have not yet been adjudicated.45 The majority of defendants who are set bail cannot afford to pay it, which means that many inmates are effectively incarcerated due to their poverty.46 Most pretrial detainees spend over a month in jail.47

Although the mass incarceration debate has focused on the harms of prison, jails are often just as harsh and dangerous, sometimes more so. Designed for short-term stays, jails typically lack the programming and facilities that prisons have. Violence, sexual assault, and disease are common.48 Moreover, even when misdemeanor offenders are not sentenced to incarceration up front, the threat of jail hangs continually over their heads if they fail to meet their conditions of probation or cannot afford to pay their fines and fees.

B. Probation

Probation, sometimes referred to as community supervision, is the most common misdemeanor sentence. Over 4 million Americans are on some form of probationary supervision, twice the number of the incarcerated. Probation can last from months to years, and it puts the offender into a prolonged and intrusive dance with the state.49 Probation conditions often involve employment, travel, and personal restrictions. Probationers lose many of their privacy rights. Violations of probation will send an offender to jail.

Like prisons, probation is increasingly being privatized.50 Many states retain private probation companies to supervise probationers, especially those who have been put on probation merely to ensure that they pay their fines. These private probation companies collect fines, administer drug tests, and perform other monitoring functions. They also charge defendants supervision fees which are tacked on to fines imposed by the court. Failure to pay these fees constitutes a probation violation and can land a defendant in jail.

C. Fines

Misdemeanors are overwhelmingly punished though fines. Although fines are often seen as a lenient alternative to incarceration, for low-income offenders they can amount to crushing and unpayable burdens.51 Courts also impose a variety of fees, including fees for using the public defender, jail fees, court costs, and drug testing and treatment costs that can total more than the original punitive fine. Defendants who fail to pay their fines and fees are often incarcerated for contempt of court, even if they were not or could not have been incarcerated for their original offense.52

The fines and fees associated with petty offenses are gaining a new notoriety. A number of nongovernmental organizations have issued reports decrying the resurgence of debtor’s prison for defendants who are too poor to pay their fines and fees.53 The 2015 U.S. Department of Justice Report on the Ferguson Police Department concluded that police and municipal courts in Ferguson, Missouri, were largely designed to extract revenues from low-income residents through the imposition of fines and fees for petty and traffic offenses.54 The Conference of State Court Administrators (COSCA) has criticized the practice, noting that it violates core notions of judicial integrity and neutrality to treat courts as revenue centers and tax collectors.55

D. Collateral Consequences

The consequences of a minor conviction do not end with formal punishment. There are thousands of collateral consequences—formal and informal—of a minor conviction that can burden individuals for a lifetime.56 The loss of a driver’s license, student loans, professional licenses, and immigration status are just a few of the civil consequences of a minor conviction.57 Informally, misdemeanor conviction records—and even arrest records—are widely and readily available to employers and can hobble a person’s employment prospects for years.58

In sum, the punishments associated with minor offenses are anything but minor. For millions of people every year, a misdemeanor conviction can mean incarceration, a long and intrusive supervision, burdensome debt, and/or employment consequences that can derail a life in ways that far exceed the culpability associated with the offense itself. These burdens are also regressive. Fines and supervision are more burdensome for individuals with low incomes and lack of resources. A record of arrest or conviction is more likely to derail the employment prospects of poor people of color. In these concrete ways, the misdemeanor punishment apparatus generates and exacerbates existing social inequalities.

VI. The Production and Tolerance of Wrongful Convictions

The petty offense system’s lackadaisical commitment to due process is a form of indifference to defendants’ actual guilt. When key legal actors consistently fail to check evidence, provide representation, or conduct meaningful hearings—the processes we use to check whether individuals are guilty—in effect they demonstrate that they do not care whether those defendants are guilty or not. As a result, the misdemeanor system is prone to producing a large number of wrongful convictions.59

The risk of wrongful conviction is built into the process at each of its stages—from arrest through plea bargaining to court proceedings. Police, for example, routinely make minor arrests that lack a strong evidentiary basis. Such arrests are typically made for other reasons: to send messages in high-crime neighborhoods, to clear a street corner, to assert police authority, or to enhance police performance statistics. Although these arrestees may not be legally guilty of any crime, they are nevertheless highly likely to end up with criminal convictions because prosecutors weakly screen such arrests, because public defenders are overwhelmed, and because assembly-line courts exert enormous pressure on defendants to plead guilty.

For example, Baltimore police are currently subject to a court-appointed auditor for using baseless loitering arrests to maintain order in high-crime communities.60 As one former officer describes it, Baltimore police arrest young men for loitering who fail to move when ordered or who “talk back” to police—an offense sometimes referred to as “contempt of cop.”61 The Maryland appeals court has held that such arrests are illegal because they do not meet the definition of loitering: “to interfere with, impede, or hinder the free passage of pedestrian…. traffic.”62 Nevertheless, two-thirds of loitering cases convert to criminal charges and people largely plead guilty.63

Similarly in New York, for decades Bronx police ran a program named “Operation Clean Sweep” in which they arrested people in public housing projects for trespass. Many arrestees were not actually trespassing but were visiting friends or relatives, or even lived on the premises but did not have identification. Nevertheless, such defendants routinely pled guilty to trespassing to avoid a stint in jail or lengthy legal proceedings.64 The program was recently declared unconstitutional.65

In 2014 in Harris County, Texas, dozens of people were found to have pled guilty to minor drug crimes that they did not commit. They were cleared months—sometimes years—after they pled guilty, when belated lab tests found no illegal drugs in the evidence seized from them.66 They pled guilty, according to Professor Samuel Gross, for reasons characteristic of the misdemeanor process:

[M]ost were held in jail because they couldn’t make bail. When they were brought to court for the first time, they were given a take-it-or-leave-it, for-today-only offer: Plead guilty and get probation or weeks to months in jail. If they refused, they’d wait in jail for months, if not a year or more, before they got to trial, and risk additional years in prison if they were convicted.67

The innocence movement—with its focus on serious crimes such as murder and rape—has yet to grapple with the full scope of misdemeanor wrongful convictions like these.68 But given the massive size of the petty offense process, the lack of evidentiary scrutiny, and the heavy pressure to plead, the process is effectively structured to generate thousands of wrongful convictions every year.

VII. Race

The misdemeanor system should be understood as the first formal step in the racialization of American crime. The dynamics in places like Ferguson, Baltimore, and New York begin with the overpolicing of poor black neighborhoods.69 It is here that racially skewed policing practices first mark young African American men as criminals—psychologically, socially, and publicly, with forcible stops and arrest records. The assembly-line misdemeanor process then converts these marks into permanent convictions. The misdemeanor system thus functionally translates race into formal criminal convictions, forging that pernicious linkage between blackness and criminality that has haunted American culture and politics for centuries.70

There has been increasing recognition of the racial skew of the U.S. criminal system in connection with the war on drugs and mass incarceration. Long drug sentences and mandatory minimums are now well understood as contributors to the system’s racial disproportion and constitute some of the great harms of mass incarceration. But the system’s racial woes do not begin in prison or with felony drug sentencing. Rather, it is the petty offense process that first formally marks African Americans as criminal in disproportionate numbers, burdening those individuals both publicly and privately in ways that can last a lifetime. By convicting thousands of African Americans for minor offenses—often ones they did not commit—the misdemeanor system acts as a primary engine of racial stratification.

VIII. Expanding the Criminal System’s Reach

The petty offense process is also a vehicle for penal expansion. Ironically, its perceived leniency and lighter forms of punishment permit it to reach, mark, and follow ever larger populations. Diversion programs, specialized courts, decriminalization, and community-based solutions all run the risk of expanding the penal apparatus even as they endeavor to ease its punitive weight.71

This net-widening tendency has long been recognized as a feature of low-level punishment and reform. Over 30 years ago, James Austin and Barry Krisberg argued that the well-meaning reforms of the 1960s and 70s such as “diversion, decarceration, [and] decriminalization” were creating “wider, stronger and different nets.”72 Four years later, in his classic work Visions of Social Control, Stanley Cohen described how those penal reforms that claimed to be destructuring the penal state were in fact expansive. “Overall, the system enlarges itself and becomes more intrusive, subjecting more and newer groups of deviants to the power of the state and increasing the intensity of control directed at former deviants.”73

These conflicting tendencies are on display in one of today’s most common and promising misdemeanor reforms: marijuana decriminalization.74 On the one hand, marijuana decriminalization is an obvious cure for the excesses of overcriminalization because it is expressly designed to roll back certain aspects of the penal system. It reduces overall arrest rates, it substitutes fines for incarceration, and it reduces the stigma of marijuana possession offenses. At the same time, however, decriminalization ironically expands other aspects of the penal apparatus, often in ways that track class and race disadvantage. For example, decriminalization makes it easier to charge and convict by eliminating the right to counsel, reducing the standard of proof, and permitting conviction based on citation. While it reduces overall arrest rates, it has not reduced racial disparities in arrests; in some jurisdictions it has exacerbated them.75 And because it punishes decriminalized offenses through fines, it imposes heavier burdens on the poor and underemployed, many of whom may end up incarcerated for failure to pay even though they could not have been incarcerated for the underlying decriminalized offense itself.76

In these ways, today’s decriminalization efforts resemble those described decades ago, rendering the penal system larger, more intrusive, and in some ways more intense. Other common reforms such as diversion, drug courts, and community courts pose many of the same risks. One of the central challenges of modern misdemeanor reform is thus to resist its expansive, regressive tendencies even while embracing its ability to ease the punitive burdens of overcriminalization.

IX. Conclusion: Between Criminal Law and Social Control

Misdemeanors reveal deep structures of the penal institution as a whole, raising perennial questions about the true purposes of the criminal apparatus. Sociologists have long argued that criminal justice operates as a method of social control, only thinly disguised as a system of neutral rules. Twenty years ago, Malcolm Feeley and Jonathan Simon posited that the system was abandoning the traditional criminal model of due process and individual guilt and becoming actuarial, a way of treating the underclass “as a high-risk group that must be managed for the protection of the larger society.”77 Loïc Wacquant has excoriated the criminal process as a method of “punishing the poor,” where “the criminalization of marginality and the punitive containment of dispossessed categories serve as social policy at the lower end of the class spectrum.”78

By contrast, traditional criminal theory insists that the aim and design of the criminal system is to punish those who break the rules. As the Model Penal Code classically articulates it, the purpose of the criminal law is:

  1. (a) to forbid and prevent conduct that unjustifiably and inexcusably inflicts or threatens substantial harm to individual or public interests;

  2. (b) to subject to public control persons whose conduct indicates that they are disposed to commit crimes;

  3. (c) to safeguard conduct that is without fault from condemnation as criminal;

  4. (d) to give fair warning of the nature of the conduct declared to constitute an offense;

  5. (e) to differentiate on reasonable grounds between serious and minor offenses.79

This conventional story about rules and culpability is at odds with the sociological view.80 It is a fundamental disagreement about what the criminal system is for. And misdemeanors illustrate how both stories are correct in their own ways.

The sociological story is particularly accurate in the misdemeanor world. Each step of the petty offense process permits and exacerbates decision-making based on race and class rather than on evidence and rules: from urban policing to “meet ‘em and plead ‘em” lawyering to assembly-line guilty pleas.81 This is not the case for the entire criminal process. In federal court, in serious cases, and for well-represented defendants, rules are typically followed; evidence typically influences outcomes. Such cases sit at what I’ve called the top of the “penal pyramid,” and they exist in a more careful, adversarial legal culture, one that comes as close to the rule-of-law ideal as we see in practice.82 At the vast bottom of the pyramid, by contrast, misdemeanor culture operates in a very different mode.

The contrast reveals a profound feature of American criminal justice: the influence of rules, evidence, and law itself varies across different parts of the criminal system for different people and for different kinds of cases. Sometimes rules authentically govern and predict outcomes, while sometimes—especially for minor crimes—race, class, and the social control model offer clearer insight into what the process is actually doing. To understand the institution of American criminal justice in its entirety, we thus need a deep appreciation for the messy workings of the enormous misdemeanor world.

References

Katherine Beckett & Steve Herbert, Banished: The New Social Control in Urban America (Oxford University Press 2009).Find this resource:

Stanley Cohen, Visions of Social Control: Crime, Punishment and Classification (Polity Press 1985).Find this resource:

Markus Dirk Dubber, The Police Power: Patriarchy and the Foundations of American Government (Columbia University Press 2005).Find this resource:

Malcolm M. Feeley, The Process Is the Punishment: Handling Cases in a Lower Criminal Court (Russell Sage 1979).Find this resource:

John Irwin, The Jail: Managing the Underclass in American Society (University of California Press 1985).Find this resource:

Jonathan Simon, Governing Through Crime: How the War on Crime Transformed American Democracy and Created a Culture of Fear (Oxford University Press 2007).Find this resource:

Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity (Duke University Press 2009).Find this resource:

Notes:

(1) Alexandra Natapoff, Misdemeanors, 85 S. Cal. L. Rev. 1313 (2012); see also Jonathan Simon, Misdemeanor Injustice and the Crisis of Mass Incarceration, 85 S. Cal. L. Rev. Postscript 113 (2012).

(2) Markus Dirk Dubber, The Police Power: Patriarchy and the Foundations of American Government 50–54 (Columbia University Press 2005).

(3) Id. at 98–101.

(4) Id. at xi–xiv.

(5) Douglas A. Blackmon, Slavery by Another Name (Anchor Books 2008); Mark Colvin, Penitentiaries, Reformatories, and Chain Gangs: Social Theory and the History of Punishment in Nineteenth-Century America 199, 218–220 (St. Martin’s Press 2000).

(6) William O. Douglas, Vagrancy and Arrest on Suspicion, 70 Yale L.J. 1, 13 (1960).

(7) Papachristou v. City of Jacksonville, 405 U.S. 156 (1972).

(8) Katherine Beckett & Steve Herbert, Banished: The New Social Control in Urban America 8–9 (Oxford University Press 2009).

(9) See, e.g., Eric J. Miller, Rule-Based Policing: Restraining Police Conduct Outside the “Legitimate Investigative Sphere,” 94 Cal. L. Rev. 617 (2006).

(10) Robert Boruchowitz et al., Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts 11 Nat’l Assoc. of Criminal Defense Lawyers, Washington DC (2009) (hereinafter Minor Crimes).

(11) Id.

(12) FBI, Crime in America 2014, Uniform Crimes Reports, Tbl. 29, available at https://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2014/crime-in-the-u.s.-2014/tables/table-29.

(13) Not Just a Ferguson Problem: How Traffic Courts Drive Inequality in California (Lawyers Comm. For Civ. Rts., 2015), available at http://www.lccr.com/not-just-ferguson-problem-how-traffic-courts-drive-inequality-in-california/; Robert Boruchowitz, Diverting and Reclassifying Misdemeanors Could Save $1 Billion per Year: Reducing the Need For and Cost of Appointed Counsel, Issue Brief, American Constitution Society for Law & Policy, Washington, DC (2010).

(14) Margaret Raymond, Penumbral Crimes, 39 Am. Crim. L. Rev. 1395 (2002). See also Dubber, supra note 2, at 56 (noting that Blackstonian police offenses ignored traditional rules regarding mens rea and actus reus requirements and that “familiar niceties of criminal law doctrine, such as the distinction between omissions and commissions, were of no significance”).

(15) Ezekiel Edwards et al., The War on Marijuana in Black and White, American Civil Liberties Union, New York, NY (2013).

(16) Alexandra Natapoff, Aggregation and Urban Misdemeanors, 40 Fordham Urb. L.J. 1043 (2013).

(17) Minor Crimes, supra note 10.

(18) Malcolm M. Feeley, The Process Is the Punishment: Handling Cases in a Lower Criminal Court 9–11 (Russell Sage 1979).

(19) Minor Crimes, supra note 10, at 31.

(20) Issa Kohler-Hausmann, Managerial Justice and Mass Misdemeanors, 66 Stan. L. Rev. 611 (2014); Eve Brensike Primus, Our Broken Misdemeanor Justice System: Its Problems and Some Potential Solutions, 85 S. Cal. L. Rev. Postscript 80 (2012); Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts, 45 U.C. Davis L. Rev. 277 (2011); Josh Bowers, Punishing the Innocent, 156 U. Pa. L. Rev. 1117 (2008); Ian Weinstein, The Adjudication of Minor Offenses in New York City, 31 Fordham Urb. L.J. 1157 (2004).

(21) Natapoff, Aggregation, supra note 16.

(22) Ligon v. City of New York, 925 F. Supp. 2d 478 (S.D.N.Y. 2013).

(23) Charles Wellford, Auditor, Fifth Status Report for the Audit of the Stipulation of Settlement between the Maryland State Conference of NAACP Branches, et al. and the Baltimore City Police Department et al., Apr. 30, 2014.

(24) Kathleen Kane-Willis et al., Patchwork Policy: An Evaluation of Arrests and Tickets for Marijuana Misdemeanors in Illinois 17 (Roosevelt Univ. 2014), available at http://www.roosevelt.edu/News_and_Events/News_Articles/2014/20140516-Marijuanastudy.aspx.

(25) Beckett & Herbert, supra note 8.

(26) Illinois v. Gates, 462 U.S. 213, 235, 238 (1983).

(27) Ronald Wright & Marc Miller, The Screening/Bargaining Tradeoff, 55 Stan. L. Rev. 29 (2002).

(28) Daniel Richman, Prosecutors and Their Agents, Agents and Their Prosecutors, 103 Colum. L. Rev. 749, 764 (2003).

(29) Josh Bowers, Legal Guilt, Normative Innocence, and the Equitable Decision Not to Prosecute, 110 Colum. L. Rev. 1655 (2010).

(30) Sometimes the dynamic ebbs and flows. Kohler-Hausmann, supra note 20, at 642 (finding that New York prosecutorial dismissal rates rose as policing became overly aggressive).

(31) Rothgery v. Gillespie Cty., 554 U.S. 191, 198 (2008) (internal quotation and citations omitted).

(32) Scott v. Illinois, 440 U.S. 397 (1979).

(33) Alabama v. Shelton, 535 U.S. 654 (2002); Argersinger v. Hamlin, 407 U.S. 25 (1972).

(34) Alabama v. Shelton, 535 U.S. 654 (2002).

(35) Minor Crimes, supra note 10, at 14–17.

(36) Minor Crimes, supra note 10, at 15.

(37) Roberts, supra note 20.

(38) Alexandra Natapoff, Gideon Skepticism, 70 Wash. & Lee L. Rev. 1049 (2013).

(39) Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004).

(40) Brady v. United States, 397 U.S. 742, 748 (1970); North Carolina v. Alford, 400 U.S. 25, 38 (1970).

(41) Primus, supra note 20.

(42) Minor Crimes, supra note 10, at 16–17.

(43) Sharon Dolovich, Foreword: Incarceration American-Style, 3 Harv. L. & Pol’y Rev. 237 (2009).

(44) John Irwin, The Jail: Managing the Underclass in American Society 1–2 (University of California Press 1985).

(45) Todd D. Minton & Zhen Zeng, Jail Inmates at Mid-Year 2014, pp. 1–4, BJS, U.S. Dep’t of Justice, NCJ 248629, June 2015, available at http://www.bjs.gov/content/pub/pdf/jim14.pdf.

(46) See Ram Subramanian et al., Incarceration’s Front Door: The Misuse of Jails in America, Vera Institute, Feb. 2015; Human Rights Watch, The Price of Freedom: Bail and Pretrial Detention of Low Income Nonfelony Defendants in New York City, New York, NY (2010).

(47) Doris J. James, Bureau of Justice Statistics, Special Report: Profile of Jail Inmates, 2002 (2004), available at http://www.bjs.gov/content/pub/pdf/pji02.pdf.

(48) Confronting Confinement: A Report of the Commission on Safety and Abuse in America’s Prisons, Vera Institute, 2006.

(49) Fiona Doherty, Obey All Laws and Be Good: Probation and the Meaning of Recidivism, 104 Geo. L.J. 291 (2016).

(50) Human Rights Watch, Profiting from Probation: America’s “Offender-Funded” Probation Industry, New York, NY (2014).

(51) Katherine Beckett & Alexes Harris, On Cash and Conviction, 10 Criminol. & Pub. Pol. 505, 506 (2011); Alexes Harris, Heather Evans, & Katherine Beckett, Drawing Blood from Stones: Legal Debt and Social Inequality in the Contemporary United States, 115 Am. J. Sociol. 1753 (2010).

(52) Alexandra Natapoff, Misdemeanor Decriminalization, 68 Vanderbilt L. Rev. 1055 (2015).

(53) American Civil Liberties Union, In for a Penny: The Rise of America’s New Debtors’ Prisons, New York, NY (2010); Brennan Center for Justice, Criminal Justice Debt: A Barrier to Reentry, NYU School of Law, New York, NY (2010).

(54) Investigation of the Ferguson Police Department, U.S Dep’t of Justice Civil Rights Div. (Mar. 4, 2015), available at http://www.justice.gov/sites/default/files/opa/press-releases/attachments/2015/03/04/ferguson_police_department_report.pdf.

(55) 2011–2012 Policy Paper: Courts Are Not Revenue Centers, Conference of State Court Administrators, Williamsburg, VA (2012).

(56) Wayne Logan, Informal Collateral Consequences, 88 Wash. L. Rev. 1103 (2013); Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 N.Y.U. L. Rev. 457 (2010).

(57) Roberts, supra note 20; Jason Cade, The Plea-Bargain Crisis for Noncitizens in Misdemeanor Court, 34 Cardozo L. Rev. 1751 (2013); Elizabeth Joh, Should Arrestee DNA Databases Extend to Misdemeanors?, 8 J. Recent Advances in DNA & Gene Sequences 1 (2015).

(58) James B. Jacobs, The Eternal Criminal Record (Harvard University Press 2015); Eisha Jain, Arrests as Regulation, 67 Stan. L. Rev. 809 (2015); 65 Million Need Not Apply: The Case for Reforming Criminal Background Checks for Employment, Nat’l Empl. Law Project, New York, NY (2011).

(59) Alexandra Natapoff, Negotiating Accuracy: DNA in the Age of Plea Bargaining, in Wrongful Convictions and the DNA Revolution: Twenty-Five Years of Freeing the Innocent (Daniel Medwed ed., Cambridge University Press forthcoming 2016).

(60) Wellford, supra note 23.

(61) Peter Moskos, Cop in the Hood: My Year Policing Baltimore’s Eastern District 114–115 (Princeton University Press 2009).

(62) Williams v. State, 780 A.2d 1210, 1218 (Md. Ct. Spec. App. 2001) (overturning loitering conviction).

(63) Complaint, Maryland NAACP et al. v. Baltimore City Police Dep’t. et al., Civil Case No. 24-C-06-005088 (Balt. City Cir. Ct., 2006) (challenging illegal order-maintenance arrests); Edward Ericson Jr., Copping Out: A City Council Report on False Arrests by Baltimore Police Fails to Address the Root of the Problem, Balt. City Paper, Oct. 5, 2005, available at http://www2.citypaper.com/film/story.asp?id=10980 (one-third of Baltimore loitering arrests dismissed).

(64) M. Chris Fabricant, Rousting the Cops, Village Voice, Oct. 30, 2007.

(65) Ligon v. City of New York, 925 F. Supp. 2d 478 (S.D.N.Y. 2013).

(66) Samuel R. Gross, Op-Ed, The Staggering Number of Wrongful Convictions in America, Wash. Post, July 24, 2015.

(67) Id.

(68) Natapoff, Negotiating Accuracy, supra note 59.

(69) See, e.g., Preeti Chauhan et al., Trends in Misdemeanor Arrest Rates in New York, Report Presented to the Citizens Crime Commission, John Jay College of Criminal Justice, New York, NY (2014) (finding substantial racial disproportion in arrest rates); Kane-Willis, supra note 24 (same); Amanda Geller & Jeffrey Fagan, Pot as Pretext: Marijuana, Race and the New Disorder in New York City Street Policing, 7 J. Empirical Legal Stud. 591 (2010) (same). See generally Khalil Gibran Muhammad, The Condemnation of Blackness: Race, Crime, and the Making of Modern Urban America (Harvard University Press 2011).

(70) Natapoff, Misdemeanors, supra note 1.

(71) See, e.g., Eric Miller, Embracing Addiction: Drug Courts and the False Promise of Judicial Interventionism, 65 Ohio St. L.J. 1479 (2004).

(72) James Austin & Barry Krisberg, Wider, Stronger and Different Nets: The Dialectics of Criminal Justice Reform, 18 J. Res. Crime & Delinq. 165, 167 (1981).

(73) Stanley Cohen, Visions of Social Control: Crime, Punishment and Classification 37–38 (Polity Press 1985).

(74) For an extensive exploration of the complexities of decriminalization, see Natapoff, Decriminalization, supra note 52.

(75) E.g., Kane-Willis, supra note 24 (on Chicago).

(76) Natapoff, Decriminalization, supra note 52. See also Wayne A. Logan, After the Cheering Stopped: Decriminalization and Legalism’s Limits, 24 Cornell J. L. & Pub. Pol. 319 (2015).

(77) Malcolm Feeley & Jonathan Simon, Actuarial Justice: The Emerging New Criminal Law, at 192, in David Nelken, The Futures of Criminology (1994). See also Issa Kohler-Hausmann, Misdemeanor Justice: Control without Conviction, 119 Am. J. Sociol. 351 (2013).

(78) Loïc Wacquant, Punishing the Poor: The Neoliberal Government of Social Insecurity 6, 41 (Duke University Press 2009).

(79) Model Penal Code § 1.02. Purposes; Principles of Construction.

(80) See Nicola Lacey, Analytical Jurisprudence Versus Descriptive Sociology Revisited, 84 Tex. L. Rev. 945, 980 (2006) (arguing “for a general commitment to theorizing law as a social phenomenon”).

(81) But see Stephanos Bibas, Bulk Misdemeanor Justice, 85 S. Cal. L. Rev. Postscript 73, 74 (2012) (“The shockingly low level of due process [in the misdemeanor arena] comes across as either the bureaucratic bungling of an overwhelmed machine or a rational, cheap way to stop overt crimes with spillover effects in disorderly neighborhoods.”).

(82) Alexandra Natapoff, The Penal Pyramid, in The New Criminal Justice Thinking (Sharon Dolovich & Alexandra Natapoff eds., NYU Press forthcoming 2017).