Access to The Champion archive is one of many exclusive member benefits. It’s normally restricted to just NACDL members. However, this content, and others like it, is available to everyone in order to educate the public on why criminal justice reform is a necessity.
NACDL has long opposed the expansion of criminal enforcement as a means of shaping human behavior. Whether it is the misguided approach to substance abuse or ill-conceived efforts to shape corporate behavior by irrationally wielding the sword of criminal prosecution, the consequences of overcriminalization are often far worse for society than the underlying conduct. The nation’s burgeoning prison population, which now approaches a staggering 2.5 million,1 produces cascading social and economic costs on families and communities. This national calamity is a direct consequence of enforcement policies that have become detached from legitimate concerns for public safety, sweeping up hundreds of thousands of non-violent, non-recidivist offenders.
This is not news in the context of felony enforcement. Lawyers, commentators, and even some political leaders are finally beginning to question whether the nation’s embrace of prosecution is the best tool for shaping behavior and whether incarceration should remain the penalty of choice. But far below the radar screen is a related development that has sucked literally millions of Americans into the criminal justice system: an unprecedented expansion of misdemeanor prosecution. From coast to coast and border to border, states and localities have embraced the criminal court and prosecution with complete abandon, threatening to turn America into a nation of convicts. They have done so, oblivious to the true costs of this romance with the criminal conviction, and without devoting the resources to the misdemeanor system necessary to preserve even a patina of justice.
NACDL Report on Misdemeanor Courts
This national disgrace will no longer remain in the shadows. On April 28th, NACDL released Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts, a report that is the result of a groundbreaking study. The report, on the Web at http://www.nacdl.org/misdemeanor, documents how assembly line justice is permanently disadvantaging millions of Americans at an incalculable cost to individuals, families, communities, and the public fisc. It is based upon 18 months of research, including two major conferences, practitioner surveys, extensive interviews, and site visits to misdemeanor courts in seven states.2 Based upon misdemeanor caseload statistics gathered by the National Center for State Courts from 12 states, it may be reliably estimated that in 2006 there were 10.5 million misdemeanor prosecutions.3
The sheer numbers do not begin to tell the story. The NACDL study found that fundamental injustice pervades America’s misdemeanor gulag. Although these prosecutions can often result in incarceration — and a misdemeanor conviction by itself, irrespective of sentence, almost always causes disabling collateral consequences — denial of the constitutional right to counsel or extraction of uninformed waivers of counsel is common.4 Even in jurisdictions where counsel may be available, unreasonable financial eligibility requirements either foreclose access to counsel or induce the accused to proceed pro se.5 Indeed, in some jurisdictions, defendants must first confer with the prosecutor about a possible plea before they can qualify for counsel.6
Extraordinary volume and limited resources create an environment that places the ultimate premium on the guilty plea. The threat of extensive delay inevitably induces the incarcerated defendant to exchange a guilty plea for immediate or early release. Similarly, the bailed working defendant must weigh the cost of repeated time-consuming court appearances against the lure of an early disposition — often oblivious to the consequences of the conviction.7
This regime of mass injustice raises profound ethical considerations for all of the players. The NACDL report documents how defense lawyers, prosecutors, and judges run afoul of ethical standards in their rush to deal with massive case overloads.8 Judges are under enormous pressure to process dockets; they display little patience for zealous advocacy. Defenders rarely have the time or the resources to adequately prepare or investigate a case. In many jurisdictions, public defenders have only minutes, or at most an hour or two, to devote to each case.
Facing similar burdens, prosecutors engage in questionable practices including the inherently coercive “one time only plea offer.” This practice involves a prosecutor offering the accused freedom or a limited sentence, but only in exchange for a guilty plea on the spot, without time for reflection, investigation, or meaningful counseling.9
Institutional pressure on the various players has led to a pervasive phenomenon known as “meet and plead.”10 This is a widespread practice in which the accused pleads guilty at the first appearance. With the benefit of only a few minutes conversation with an attorney, often occurring in a holding cell or a courtroom hallway, the only “advice” is the transmission of a plea offer. Then the accused appears before the judge, pleads guilty, and is sentenced. The report notes that in one of the nation’s busiest venues, New York City, as many as two-thirds of misdemeanor cases result in guilty pleas at the first court appearance.11 This translates into more than 100,000 “meet and pleads” annually — in just one city.
There are two fundamental reasons why America’s misdemeanor courts are broken. First, there is an obsessive pattern of overcriminalization. Among the acts that are treated as criminal offenses are such things as feeding the homeless, having an unleashed pet, riding a bicycle on a sidewalk, sleeping in a cardboard box, taking up two seats on a subway, possession of alcohol (by a minor), and the most prevalent — driving with a suspended license.12 Suspended license cases, which are often the product of economic hardship, predominate on misdemeanor calendars in some jurisdictions.
Predictably, the criminalization of this torrent of petty offenses directly correlates to the second reason why justice has collapsed in misdemeanor courts: obscenely oppressive caseloads that impose a crushing burden on prosecutors, defenders, and courts. While local and state legislatures rush headlong into criminalizing behavior, they seldom provide the necessary funding to process these cases with any meaningful concern for due process. This underfunding is almost always most acute with respect to defense services. The result is a vicious cycle of more arrests and less justice, an assembly line of conviction that extracts daunting social and economic costs.
Fortunately, there is a way to break this cycle of despair. The NACDL report outlines a broad panoply of reforms that restores sanity and a modicum of justice to our misdemeanor courts. First and foremost, offenses that do not involve any significant risk to public safety should be diverted to non-criminal venues.13 Promising initiatives are already underway in some states, including Hawaii, Nebraska, and Massachusetts.14 But until these reforms take root, urgent steps are necessary to limit excessive caseloads, provide adequate funding, and eliminate practices that undermine fundamental constitutional rights and justice itself. The NACDL report sets forth a litany of cogent and achievable recommendations to achieve these reforms.
NACDL as a Beacon of Justice
NACDL’s misdemeanor reform initiative represents an extraordinary example of the association’s capacity to tackle systemic deficiency in our criminal justice system. The report is the result of a broad partnership among members, staff, defense practitioners, and academia. The effort was launched by the NACDL Indigent Defense Committee under the leadership of E. Gerry Morris of Austin, Texas, and Rick Jones of New York City, and was enthusiastically embraced by NACDL’s Board of Directors and the Foundation for Criminal Justice, which, in turn, received generous support from the Open Society Institute and the Ford Foundation. Professor Robert C. Boruchowitz of the Seattle University School of Law was the lead researcher. The report was co-authored by NACDL’s indigent defense counsel, Maureen Dimino, who also guided the field research, and Malia N. Brink, who was indigent defense counsel when the project was launched and continues to serve NACDL as counsel for special projects. Many other members of NACDL’s incomparable staff contributed in myriad ways to the production of the report.
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This project should be a source of pride for NACDL’s membership, many of whom toil every day in the trenches of our nation’s misdemeanor courts. They are eyewitnesses to the massive waste and the pervasive injustice. Hopefully, the report will encourage an army of reformers to rise up and restore balance and justice to these overburdened and undersupported courts.
- As of June 30, 2008, there were 2,310,984 people being held in federal or state prisons or in local jails. See http://ojp.usdoj.gov/bjs/prisons.htm (last visited May 5, 2009).
- Robert C. Boruchowitz, Malia N. Brink & Maureen Dimino, Nat’l Ass’n of Criminal Def. Lawyers, Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts 10-11 (2009).
- Id. at 11.
- Id. at 14-16.
- Id. at 16.
- Id. at 16-17.
- Id. at 18-19.
- Id. at 30-36, 44-45.
- Id. at 33.
- Id. at 31-32.
- Id. at 31.
- In many jurisdictions, a driver’s license may be suspended for myriad reasons wholly unrelated to an individual’s driving record. A license may be suspended for failure to pay fines or fees, or even for such things as falling behind in child support payments. Id. at 26.
- Id. at 27.
- Id. at 27-28.