This article by Jenny Roberts was recently posted on SSRN.
Here is the abstract:
With “minor crimes” making up more than 75% of state criminal caseloads, the United States faces a misdemeanor crisis. Although mass incarceration continues to plague the nation, the current criminal justice system is faltering under the weight of misdemeanor processing.
Operating under the “broken windows theory,” which claims that public order law enforcement prevents more serious crime, the police send many petty offenses to criminal court. This is so even though the original authors of the theory noted that “[o]rdinarily, no judge or jury ever sees the persons caught up in a dispute over the appropriate level of neighborhood order” and that “a judge may not be any wiser or more effective than a police officer.” Prosecutors have largely failed to exercise discretion in misdemeanor cases, instead churning them through the already overburdened courts. Judges too have been complicit, failing to dismiss weak cases and to intervene when defenders represent their clients ineffectively. As a result, many cases end in a quick guilty plea with little or no jail time. The “broken windows theory” suggests that everyone benefits from such efficiency.
Yet the effect of misdemeanor convictions is anything but minor. A quick guilty plea appears advantageous for a disorderly conduct misdemeanor in exchange for the night already served in jail. But this conviction can, and does, lead to eviction from public housing. It can, and does, pose a bar to showing “good moral conduct” for citizenship. And it can, and does, make it difficult to find work in an era when employers routinely run criminal background checks. The many harsh collateral consequences of even a “minor” misdemeanor conviction create serious barriers to the most basic aspects of life. Mass misdemeanor processing thus harms the individual, his family, his community, and society.
Refusing to process individuals quickly would impose some of the real costs of mass misdemeanor processing on the justice system itself. Such a “crash” of the criminal justice system would not be dramatic. Instead, if defense counsel litigated some of the many factual and legal issues that misdemeanors present, the system would grind to a halt under its own weight. The representation would be nothing more than Gideon and its progeny require, but would shift the burden for mass misdemeanor processing to the prosecution and the courts from misdemeanor defendants. Under this weight, legislators might reduce the short- and long-term costs of mass misdemeanor policing. Prosecutors might exercise greater discretion, and police officers might maintain order without needless arrests.
Part I explores the idea of crashing the system as a potential response to the misdemeanor crisis. Part II describes the potential role for defense counsel in such an institutional response. Part III outlines specific strategies that specialized defender practice groups might pursue to crash the system. Part IV explores arguments for and against efforts to crash the existing misdemeanor system.