This dynamic represents a breakdown in basic principles of justice. First, arrests are permitted to convert directly into criminal convictions without scrutiny of the facts by prosecutors or defense attorneys. Police are not supposed to decide who gets convicted. That’s what trials and plea bargaining are for. Moreover, where arrests themselves are generated not by evidence of crime but by other law enforcement tactics like order maintenance and street sweeps, the resulting convictions lack an evidentiary basis. That’s a fancy way of saying that defendants are innocent.
Of course, not all misdemeanors arise in such a haphazard way. Some get the scrutiny they deserve. Federal misdemeanors, for example, are typically well-litigated. Many arrests are based on stronger types of evidence that make wrongful conviction less likely. But for too many people, the system isn’t working the way it’s supposed to work. Because the misdemeanor process isn’t equipped to check the evidence, it mechanically imposes criminal convictions, punishment, and stigma regardless of whether individuals are guilty. The risks are especially high in connection with urban policing, a fact that has racial implications. The war on drugs has been rightly criticized for filling prisons with black men, but the system’s racial skew is not solely a function of drug cases. It turns out that the lowly misdemeanor process is an important contributor, too.
Today, the criminal justice status quo is being reconsidered from many different angles. The Supreme Court is taking a new look at prison overcrowding. Congress has reduced the crack-cocaine disparity, and public support for the death penalty appears to be eroding. Some even predict an end to the war on crime. Any rethinking needs to include the millions of Americans who experience the criminal justice system for the most minor offenses. It’s time to give misdemeanors their due.