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10 million misdemeanors deform our justice system

Dec 16th, 2013 | Category: Lead Article

By Alexandra Natapoff April 27, 2012, from SLATE

Yesterday, people across America pleaded guilty to crimes they didn’t commit. This isn’t something new or extraordinary. Every year, the American criminal system punishes thousands of people who are not guilty.

These routine wrongful convictions never make it into headlines because they are misdemeanors, petty offenses like trespassing, disorderly conduct, or loitering. Minor offenses are largely ignored because we are usually focused on the felonies—the rapes, murders, drug crimes, and robberies. But felonies are actually exceptional. Approximately 1 million felony convictions are entered every year; more than 10 million misdemeanor cases are filed in the same time. In most states, misdemeanor dockets are four or five times the size of felony dockets. If you ever enter the American criminal justice system, odds are it will be for a misdemeanor. They may be seen as small-time offenses, but collectively how we process misdemeanors represents an immense and influential public institution. Something so powerful deserves far deeper scrutiny.

Because petty offenses are considered second-class citizens, data about them are sparse. Some states like California don’t even bother to count their misdemeanor convictions at all. One of the few reports on the phenomenon, published by the National Association of Criminal Defense Lawyers, concludes that the massive misdemeanor apparatus is shockingly informal, overcrowded, and sloppy. Petty offenders are routinely denied counsel even when they are constitutionally entitled to a lawyer. If counsel is appointed, public defenders carry so many cases—some literally have thousands—that they can devote only minutes to each one.

The misdemeanor machine has inspired a slew of epithets: “meet ‘em and plead ‘em lawyering,” “assembly line justice,” “cattle herding,” and “McJustice.” They reflect the reality that once people charged with misdemeanors get to court, they are pressured by judges, prosecutors, and their own lawyers into pleading guilty, often without knowledge of their rights or the nature of the charges against them. Bail makes it worse. Around 80 percent of defendants who have bail set cannot afford to pay it. Innocent defendants commonly plead guilty just to get out of jail. In this way, millions of Americans are punished without due process and learn the cynical lesson that, at least when it comes to minor offenses, law and evidence aren’t all that important.

This dynamic represents a breakdown in basic principles of justice. First, arrests are permitted to convert directly into criminal convictions without scrutiny of the facts by prosecutors or defense attorneys. Police are not supposed to decide who gets convicted. That’s what trials and plea bargaining are for. Moreover, where arrests themselves are generated not by evidence of crime but by other law enforcement tactics like order maintenance and street sweeps, the resulting convictions lack an evidentiary basis. That’s a fancy way of saying that defendants are innocent.

Of course, not all misdemeanors arise in such a haphazard way. Some get the scrutiny they deserve. Federal misdemeanors, for example, are typically well-litigated. Many arrests are based on stronger types of evidence that make wrongful conviction less likely. But for too many people, the system isn’t working the way it’s supposed to work. Because the misdemeanor process isn’t equipped to check the evidence, it mechanically imposes criminal convictions, punishment, and stigma regardless of whether individuals are guilty. The risks are especially high in connection with urban policing, a fact that has racial implications. The war on drugs has been rightly criticized for filling prisons with black men, but the system’s racial skew is not solely a function of drug cases. It turns out that the lowly misdemeanor process is an important contributor, too.

Today, the criminal justice status quo is being reconsidered from many different angles. The Supreme Court is taking a new look at prison [and jail]  overcrowding. Congress has reduced the crack-cocaine disparity, and public support for the death penalty appears to be eroding. Some even predict an end to the war on crime. Any rethinking needs to include the millions of Americans who experience the criminal justice system for the most minor offenses. It’s time to give misdemeanors their due.


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