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The High Stakes of Low-Level Criminal Justice

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The High Stakes of Low-Level Criminal Justice ALEXANDRA NATAPOFF The High Stakes of Low-Level Criminal Justice Misdemeanorland: Criminal Courts and Social Control in an Age of Broken Windows Policing BY ISSA KOHLER- HAUSMANN PRINCETON UNIVERSITY PRESS, 2018 abstract. The low-level misdemeanor process is a powerful socio-legal institution that both regulates and generates inequality. At the same time, misdemeanor legal processing often ignores many foundational criminal justice values such as due process, evidence, and even individual guilt. These features are linked: the erosion of the rule of law is one of the concrete mechanisms enabling the misdemeanor system to take aim at the disadvantaged, rather than at the merely guilty. In the book Misdemeanorland, Issa Kohler-Hausmann describes the inegalitarian workings of the misde- meanor legal process in New York City and how it operates as a system of managerial social control over the disadvantaged even when it stops short of convicting and incarcerating them. This Review summarizes the book’s key contributions to the burgeoning scholarly discourse on misdemeanors and then extends its insights about New York to illuminate the broader dynamics and democratic significance of the U.S. misdemeanor process. author. Professor of Law, University of California, Irvine School of Law. Special thanks to Guy-Uriel Charles, Sharon Dolovich, Mona Lynch, and Doug NeJaime. My thanks also to the ed- itors of the Yale Law Journal for their excellent work. 1648 the high stakes of low-level criminal justice book review contents introduction 1650 i. the misdemeanor challenge in national perspective: devaluing due process for the disadvantaged 1659 ii. new york city 1665 A. The Legal System’s Response to Broken-Windows Policing 1665 B. Mapping Managerialism: Marking, Procedural Hassle, and Performance 1672 iii. the punitive spectrum: from managerialism to conventional punishment 1677 iv. an adversarial take on the managerial compromise 1682 A. Gideon in Misdemeanor Processing 1683 B. Prosecutorial Complicity in Broken-Windows Policing 1686 C. The New York Adversarial System at Work 1689 v. misdemeanor justice? 1692 A. The Equitable Importance of the Rule of Law 1694 B. Managerial Injustices 1697 conclusion: the leniency fallacy 1702 1649 the yale law journal 128:1648 2019 introduction Over the past few years, misdemeanor policing and low-level courts have in- creasingly become the subject of legal scrutiny, social unrest, and racial distrust. Across the country, civil rights advocates are suing municipal courts for operat- ing as barely disguised regressive tax operations, in a system that the New York Times has labeled “cash-register justice.”1 Bail reform is sweeping the nation in large part because cash bail in low-level cases is increasingly understood as a form of unconstitutional discrimination against the poor. The anger of the Black Lives Matter movement is heavily fueled by the experience of order-maintenance policing—stops and arrests for minor offenses such as loitering, trespassing, and disorderly conduct.2 Michael Brown, after all, was originally stopped merely for jaywalking in the streets of Ferguson before police officer Darren Wilson shot and killed him.3 And in 2015, the Republican-controlled Senate Judiciary Com- mittee held a hearing entitled “Protecting the Constitutional Right to Counsel for Indigents Charged with Misdemeanors,” in which committee chair Senator Chuck Grassley lamented that 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.4 1. Editorial, Ending Cash-Register Justice, N.Y. TIMES, (Oct. 17, 2017), https://www.nytimes.com /2017/10/17/opinion/ending-cash-register-justice.html [https://perma.cc/7YNH-A5V8]. 2. End Broken Windows Policing, CAMPAIGN ZERO, https://www.joincampaignzero.org /brokenwindows [https://perma.cc/ZSM9-82U4] (arguing for the elimination or depriori- tization of offenses including “Consumption of Alcohol on Streets, Marijuana Possession, Disorderly Conduct, Trespassing, Loitering, Disturbing the Peace [including Loud Music], Spitting, Jaywalking, [and] Bicycling on the Sidewalk”); see also Devon W. Carbado, Predatory Policing, 85 UMKC L. REV. 545, 549-51 (2017) (identifying low-level misdemeanor policing as a source of systemic racism). 3. Frances Robles & Julie Bosman, Autopsy Shows Michael Brown Was Struck at Least 6 Times, N.Y. TIMES (Aug. 17, 2014), https://www.nytimes.com/2014/08/18/us/michael-brown -autopsy-shows-he-was-shot-at-least-6-times.html [https://perma.cc/YBR7-MMGK]. 4. Protecting the Constitutional Right to Counsel for Indigents Charged with Misdemeanors: Hearing Before the S. Comm. on the Judiciary, 114th Cong. (2015) (statement of Sen. Chuck Grassley, Chairman, S. Comm. on the Judiciary) [hereinafter Grassley Statement]; see also Andrew Co- hen, 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 1650 the high stakes of low-level criminal justice The stakes of this debate could not be higher. Misdemeanors represent eighty percent of state criminal dockets.5 Approximately thirteen million misde- meanor cases are filed nationally every year, compared to three or four million felony cases.6 The misdemeanor process is the governance vehicle through which the U.S. penal system most frequently exercises its coercive police and punitive powers, usually over the most economically and racially vulnerable subjects. This is how the criminal system engages with most people, most of the time. Yet it does so in ways that are profoundly attenuated from the basic procedural re- quirements and substantive justifications of criminal law. Light on due process, heavy on informal controls, and relatively uninterested in evidence or culpability, the petty-offense process does the work of criminal justice in violation of key rules governing the exercise of state criminal authority. There are numerous disturbing features of this phenomenon—it criminalizes the poor, convicts the innocent, and often violates the Constitution. But the foundational questions run deeper. The misdemeanor process sits on a demo- cratic fault line of the criminal system as a thinly regulated exercise of police power that persistently resists many basic legitimating constraints of state penal authority and constitutional democracy. It is aggressively stratifying, aimed dis- proportionately at the poor and people of color while contributing heavily to wealth-based and racial inequality. Enormous, decentralized, and opaque, the misdemeanor process is at once highly influential and lacking in democratic ac- countability. For decades, the legal academy paid scant attention to this vast arena of law, policy, and practice. But that has recently changed. In 2018, two full-length books on the subject were released,7 the first since Malcolm Feeley published his -serve-the-poor [https://perma.cc/6BK2-QF4T] (contextualizing the Senate Judiciary Com- mittee hearing within broader conservative support for devoting more resources to appointed counsel in misdemeanor cases). 5. ALEXANDRA NATAPOFF, PUNISHMENT WITHOUT CRIME: HOW OUR MASSIVE MISDEMEANOR SYSTEM TRAPS THE INNOCENT AND MAKES AMERICA MORE UNEQUAL 40-41 (2018). 6. Id. 7. ISSA KOHLER-HAUSMANN, MISDEMEANORLAND: CRIMINAL COURTS AND SOCIAL CONTROL IN AN AGE OF BROKEN WINDOWS POLICING (2018); NATAPOFF, supra note 5. 1651 the yale law journal 128:1648 2019 seminal work, The Process Is the Punishment in 1979.8 Also in 2018, Boston Uni- versity held a two-day symposium9 that generated nine articles on “the Misde- meanor Machinery,”10 while at least four additional law review articles explored important aspects of the petty-offense process.11 The year before, in 2017, schol- ars published over fifteen more pieces.12 Subjects ranged from cash bail to debtor’s prison to wrongful convictions. 8. MALCOLM M. FEELEY, THE PROCESS IS THE PUNISHMENT: HANDLING CASES IN A LOWER CRIM- INAL COURT (paperback ed. 1992). 9. Misdemeanor Machinery: The Hidden Heart of the American Criminal Justice System, B.U. SCH. L., https://www.bu.edu/law/2017/09/15/misdemeanor-machinery-the-hidden-core-of-the -american-criminal-justice-system [https://perma.cc/K8SH-N887]. 10. Shima Baradaran Baughman, The History of Misdemeanor Bail, 98 B.U. L. REV. 837 (2018); Greg Berman & Julian Adler, Toward Misdemeanor Justice: Lessons from New York City, 98 B.U. L. REV. 981 (2018); Jenn Rolnick Borchetta, Curbing Collateral Punishment in the Big Data Age: How Lawyers and Advocates Can Use Criminal Record Sealing Statutes to Protect Privacy and the Presumption of Innocence, 98 B.U. L. REV. 915 (2018); Malcolm M. Feeley, How to Think About Criminal Court Reform, 98 B.U. L. REV. 673 (2018); Samuel R. Gross, Errors in Misdemeanor Adjudication, 98 B.U. L. REV. 999 (2018); Eisha Jain, Proportionality and Other Misdemeanor Myths, 98 B.U. L. REV. 953 (2018); Irene Oritseweyinmi Joe, The Prosecutor’s Client Problem, 98 B.U. L. REV. 885 (2018); Jenny Roberts, The Innocence Movement and Misdemeanors, 98 B.U. L. REV. 779 (2018); Megan Stevenson & Sandra Mayson, The Scale of Misdemeanor Justice, 98 B.U. L. REV. 731 (2018). 11. Carlos Berdejó, Criminalizing Race: Racial Disparities in Plea-Bargaining, 59 B.C. L. REV. 1187 (2018); Beth A. Colgan,
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