Alexandra Natapoff

Although it is often ignored, the misdemeanor system is one of the largest, most influential, and troubled aspects of the U.S. criminal justice process. It generates 13 million cases every year — 80 percent of all state criminal dockets.[1] It encompasses public offices — including courts, prosecutors, public defenders, and jails — in thousands of state, county and city jurisdictions across the country. This is what the American criminal system does, most of the time, to the most people.

In part because it is so large and decentralized, the misdemeanor system is under-regulated and rarely scrutinized. And it is rife with official rule-breaking. The U.S Supreme Court, for example, has long declared it unconstitutional to incarcerate people for misdemeanor violations if they have not been given a lawyer.[2] But in misdemeanor courtrooms around the country, defendants routinely plead guilty and face jail without counsel, often working out a deal directly with the prosecutor or even the arresting police officer.[3]

Indeed, in a public speech in 2007, former Chief Justice of the South Carolina Supreme Court Jean Hoefer Toal derided the constitutional obligation to provide counsel. Calling it "one of the more misguided decisions of the United States Supreme Court," she declared that South Carolina would not give misdemeanor defendants lawyers. "I will tell you straight up," she announced, "that we are not adhering to [that rule] in every situation."[4] In 2015, the Senate Judiciary Committee held a hearing entitled "Protecting the Constitutional Right to Counsel for Indigents Charged with Misdemeanors," in which committee chair Sen. Chuck Grassley, R-Iowa, lamented:

many states are not providing counsel as the Constitution requires. It is a widespread problem. In reality, the Supreme Court's Sixth Amendment decisions regarding misdemeanor defendants are violated thousands of times every day. No Supreme Court decisions in our history have been violated so widely, so frequently, and for so long.[5]

The right to counsel is just one of many foundational legal principles that are routinely ignored in misdemeanor adjudication; public officials violate the law in numerous ways.[6] In a Maryland misdemeanor court, for example, a judge made up an imaginary rule of evidence to help the prosecution. When the defense attorney complained, he threatened to hold her in contempt. In Clinch County, Georgia, the sheriff unilaterally decided to charge room and board fees to jail inmates even though he lacked the legal authority to do so.

In Texas, judges failed to hold hearings before incarcerating defendants who could not pay fines: Many judges were ignorant of the fact that Texas law requires such hearings. In Baltimore, police routinely clear street corners by arresting African American men for loitering, even though the Maryland Court of Appeals has declared that such arrests are often baseless. In New York, Eddie Wise was convicted of loitering seven times after the state's loitering statute was declared unconstitutional.

Official lawlessness flourishes in the lowest echelons of the criminal system in part because misdemeanors are so often discounted as petty and unimportant. But they are neither. A misdemeanor conviction can destroy a person's employability, housing, immigration status and credit. The entire experience of going through the misdemeanor process is burdensome and frightening in its own right: from the intrusions of getting arrested, to the dangers of sitting in jail, to the stigma of criminalization. 

The petty offense process looms large in another way: It has become a national economic force to be reckoned with. Many courts, municipalities and private businesses rely heavily on the revenue stream generated from low-level fines and fees. This economic reliance creates perverse incentives for criminal justice institutions to sweep more people into the system.

In effect, the misdemeanor process strips millions of poor and working people of their wealth in order to fund itself, making it a covert form of regressive taxation. This wealth-stripping aspect of the criminal process is also frequently lawless: It is unconstitutional to incarcerate individuals merely because they cannot afford to pay a fine or a fee.[7] And yet, under pressure to raise misdemeanor revenue, jurisdictions around the country have let their local jails devolve into debtor's prisons in which people are incarcerated solely for their inability to pay traffic, misdemeanor or other low-level fines.

Misdemeanors represent the vast majority of the U.S. criminal system, touching millions of lives and redistributing billions of public and private dollars. It is time we brought this enormous aspect of our democracy into the modern legal era. This means insisting, not only that legal officials obey the law, but that they honor basic principles of justice.

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Alexandra Natapoff is a professor of law at the University of California, Irvine School of Law. She is a 2016 Guggenheim Fellow and a member of the American Law Institute. Her newest book is "Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal" (Basic Books, 2018).

"Perspectives" is a regular feature written by guest authors on access to justice issues. To pitch article ideas, email expertanalysis@law360.com.

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[1] Alexandra Natapoff, Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal 41 (Basic Books, 2018).

[2] Alabama v. Shelton , 535 U.S. 654 (2002) (requiring appointment of counsel when a defendant is sentenced to incarceration, jailable probation, or to a suspended sentence).

[3] Robert Boruchowitz et al., Minor Crimes, Massive Waste: The Terrible Toll of America's Broken Misdemeanor Courts, Nat'l Ass'n Crim. Def. Law. (April 2009), https://www.nacdl.org/reports/misdemeanor/.

[4] Id. at 15.

[5] Protecting the Constitutional Right to Counsel for Indigents Charged with Misdemeanors, 114th Cong. (2015) (statement of Sen. Chuck Grassley, Chairman, S. Comm. on the Judiciary); see also Andrew Cohen, A New Conservative Approach to Justice: Serve the Poor, Marshall Project (May 12, 2015), https://www.themarshallproject.org/2015/05/12/a-new-conservative-approach-to-justice-serve-the-poor.

[6] Natapoff, supra note 1.

[7] Bearden v. Georgia , 461 U.S. 660 (1983).