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.

Cops making an arrest
Cops making an arrest

Photograph by Jonathan Gibby/Getty Images.

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 place.

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.