May 2012, Week 1


Options: Use Monospaced Font
Show Text Part by Default
Show All Mail Headers

Message: [<< First] [< Prev] [Next >] [Last >>]
Topic: [<< First] [< Prev] [Next >] [Last >>]
Author: [<< First] [< Prev] [Next >] [Last >>]

Print Reply
Portside Moderator <[log in to unmask]>
Reply To:
Sun, 6 May 2012 23:58:11 -0400
text/plain (204 lines)
Why Misdemeanors Aren't So Minor
Too often the criminal justice system is pronouncing
people guilty without evidence, lawyers, or a chance
to plead their case.
By Alexandra Natapoff
April 27, 2012

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.

Of course, there's an argument that minor crimes may not
actually matter that much. Guilty pleas typically result
in a fine or probation, not prison. Given the deplorable
lack of resources systemwide, perhaps minor crimes
should indeed be handled in the quickest, cheapest way
without counsel or a whole lot of due process. Indeed,
petty offenders may well get out of jail sooner if they
plead guilty. Moreover, it is widely assumed that these
millions of defendants are actually guilty, so rushing
them through the system probably won't result in much of
a miscarriage of justice. Maybe there are good reasons
to take the quick-and-dirty approach.

Nevertheless, we shouldn't write off misdemeanors. The
repercussions of a petty conviction can be anything but
minor. These offenses are increasingly punished with
hefty fines that low-income defendants cannot pay. A
conviction of any kind can ruin a person's job
prospects. A petty conviction can affect eligibility for
professional licenses, child custody, food stamps,
student loans, and health care or lead to deportation.
In many cities, a misdemeanor makes you ineligible for
public housing.

Even though those charged often avoid formal jail
sentences, many spend a significant amount of time
incarcerated waiting for their cases to be resolved. The
average jailed arrestee can expect to spend between one
and two months behind bars before his case is resolved.
According to a 2004 American Bar Association Report, one
Georgia defendant arrested for loitering spent 13 months
in jail before seeing a lawyer, a judge, or being
formally charged. And because jails are rife with rape,
violence, and disease, those months can be as dangerous
and unpleasant as any prison. In Florida, for example,
Dorothy Palinchik was jailed for stealing a $9 Philly
cheesesteak sandwich. Within days, the 42-year-old
waitress contracted a staph infection and pneumonia,
which sent her into a fatal coma.

Finally, many of those convicted may actually be
innocent. Especially for large classes of urban policing
offenses, such as loitering, trespassing, and disorderly
conduct, convictions can easily occur without any
evidence that the defendant actually committed a crime.
To understand why, we need to go back to the beginning
of the misdemeanor process: the initial arrest. Arrests
require probable cause; there must be enough evidence to
make it likely that the defendant actually "did it." But
police routinely arrest urban residents-particularly
young black men-for other reasons, like clearing a
street corner or establishing a police presence in a
high-crime neighborhood.

For example, as former Baltimore cop and now-sociology
professor Peter Moskos describes in his book Cop in the
Hood, Baltimore police warn people to move on and arrest
them for loitering when they don't. The problem is that
the crime of loitering is defined as "interfering,
impeding, or hindering the free passage of pedestrian or
vehicular traffic after receiving a warning." A person
who merely fails to move when ordered to move by a
police officer is not actually guilty, but thousands of
arrests occur in Baltimore on this basis every year. The
same is reportedly true in New York.

Once police arrest someone, it is up to prosecutors to
decide whether or not to charge the person with a crime.
The system depends heavily on prosecutors to decline
cases that lack evidence. But prosecutors often fail to
screen misdemeanors precisely because they are seen as
insignificant, and instead charge all petty arrestees on
whatever basis the police arrested them. Studies in
Iowa, New York, and North Carolina reveal that
prosecutors declined only 3 or 4 percent of petty
offenses. In jurisdictions like these, 96 percent of
arrests convert automatically into criminal charges.

Once charged, misdemeanor suspects have little choice
but to plead guilty. As the NACDL study revealed, many
of these suspects will not get lawyers, and courts rush
cases through in order to clear crowded dockets. Jailed
defendants may plead just to go home. As a result, a
person arrested for a so-called urban disorder offense
is likely to get charged with it and to plead guilty to
it, even if there was no real evidence in the first

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 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.


Portside aims to provide material of interest to people
on the left that will help them to interpret the world
and to change it.

Submit via email: [log in to unmask]

Submit via the Web: http://portside.org/submittous3

Frequently asked questions: http://portside.org/faq

Sub/Unsub: http://portside.org/subscribe-and-unsubscribe

Search Portside archives: http://portside.org/archive

Contribute to Portside: https://portside.org/donate