By Alexandra Natapoff
Ms. Natapoff is a visiting law professor at Harvard Law School.
American voters have realized that prosecutors hold the keys to a fairer criminal justice system. In November’s elections, they replaced numerous incumbents with reformers who promised to reduce mass incarceration, its exorbitant costs and its racial disparities. Prosecutors are central to solving these problems because they control two of the most important decisions in the criminal process: who will be charged with a crime and what that criminal charge will be.
But in practice they do not decide alone. In the enormous world of misdemeanor processing, the police quietly wield a lot of prosecutorial authority. So for voters seeking change, switching prosecutors is only a partial solution.
In hundreds of misdemeanor courts in at least 14 states, police officers can file criminal charges and handle court cases, acting as prosecutor as well as witness and negotiator. People must defend themselves against, or work out plea deals with, the same police officers who arrested them for low-level offenses like shoplifting or trespassing.
Consider South Carolina, where most of the 400 magistrate and municipal courts had no prosecuting attorneys, according to a 2017 study by the National Association of Criminal Defense Lawyers. The police prosecuted their own misdemeanor arrests, while 90 percent of defendants had no lawyers and so faced the arresting officer-prosecutor on their own. South Carolina also does not require its lower-court judges to be lawyers, so thousands of convictions occur without input from a single attorney.
The police in other states can end up as de facto prosecutors, even without formal charging authority. Prosecutors typically lack the time and resources to screen hundreds of minor arrests, and so most arrests are routinely prosecuted. This lack of initial screening manifests in low declination rates — the rate at which prosecutors “decline” arrests and decide not to bring formal criminal charges.
In Mecklenburg, N.C., for example, the prosecutorial declination rate for drug offenses was only 4 percent, according to a study by the Vera Institute of Justice. For drug offenses brought against African-American women at the time, it was zero; every single arrest became a formal criminal charge. In Texas, the non-traffic misdemeanor declination rate in municipal court was around 8 percent in 2015. In Alaska, it was less than 4 percent. In jurisdictions with such low declination rates, over 90 percent of arrests convert to criminal charges without much scrutiny; getting arrested is tantamount to being charged with a crime.
In contrast, federal prosecutors decline about one-third of felony cases, and some jurisdictions screen misdemeanors more rigorously too. In Baltimore, prosecutors decline over 20 percent of disorderly conduct and disturbing-the-peace arrests at the jail, sending people home before anyone has to go to court. The Bronx district attorney decided to stop prosecuting trespass arrests in 2012 based on police reports alone. Two years later, the Brooklyn district attorney began declining many marijuana possession arrests. In November, Rachael Rollins became Boston’s first female African-American district attorney based partly on her campaign promise to automatically decline 15 types of minor crimes such as disorderly conduct and drug possession.
In places like those, prosecutors are performing the vital gatekeeping role that has earned them such broad discretion. But when prosecutors do not screen thoroughly, the police become accidental prosecutors, deciding, in effect, not only who will be arrested but also who will be charged with a crime.
A minor criminal charge can have ruinous consequences. People accused of misdemeanors are under heavy pressure to plead guilty, especially if they are incarcerated and cannot afford bail. Misdemeanor defendants often do not get lawyers and must make crucial decisions without legal advice.
While charges are pending, they may lose their jobs, disrupt their child care or risk their immigration status. Even when cases are dismissed, as about one-third of misdemeanor charges eventually are, defendants must still resist pressures to plead guilty, for weeks or even months.
If cases are not dismissed, well over 90 percent of defendants will plead guilty. They will then struggle with fines, probation, perhaps jail, and permanent criminal records that can derail their future employment, housing and education. It turns out that simply being arrested and charged with a minor offense is a long and painful step toward being convicted of one.
Those initial police decisions are crucial in another way: Arrests determine who will end up in the misdemeanor pipeline. African-Americans make up nearly 30 percent of national misdemeanor arrests although they represent some 12 percent of the population. Marijuana arrests are especially skewed by race; blacks are four times more likely than whites to be arrested for possession, even though the two groups use marijuana at the same rates. In many cities, people of color are disproportionately arrested for jaywalking, disorderly conduct and resisting arrest. These racially skewed policing decisions begin an official process that formally criminalizes millions of people of color every year.
That enormous misdemeanor process constitutes the bulk of the American criminal system. Thirteen million misdemeanor cases are filed annually — that’s 80 percent of all state criminal dockets. This is how our criminal system works most of the time, for the most people.
There are many ways that the police and prosecutors can improve the misdemeanor system, mostly by shrinking it. The police can deploy low-level arrests less often and in more targeted and strategic ways, as many community policing programs already do. And they can focus on reducing racial disparities.
Prosecutors should devote more time and resources to screening misdemeanors so that minor arrests do not become criminal charges so easily and so often. The ultimate aim — and the thing voters should demand in the next election — is to ease the flood of misdemeanor arrests and convictions that quietly derails millions of people’s lives every year and that exacerbates some of the worst injustices of our criminal system.
Alexandra Natapoff is a visiting law professor at Harvard Law School and a law professor at the University of California, Irvine School of Law. She is the author of the forthcoming book “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal.”