Aggregation and urban misdemeanors.

• Author: Natapoff, Alexandra

ABSTRACT

The urban misdemeanor process relies on a wide variety of informal groupings and aggregations. Order maintenance police arrest large numbers of people based on neighborhood, age, race, and other generalizations. Prosecutors and public defenders resolve entire classes of minor plea bargains based on standard local practices and pricing. Urban courts process hundreds of cases en masse. At each stage, the pressure to aggregate--to treat people and cases by group--weakens and sometimes eliminates individuated scrutiny of defendants and the evidence in their cases; people are largely evaluated, convicted, and punished by category and based on institutional habit. This wholesale process of creating criminal convictions in the aggregate is in deep tension with core precepts of criminal law, most fundamentally the idea that criminal guilt is an individuated concept reflecting the defendant's personal culpability.

This Article traces the influence of different sorts of aggregation through each step of the urban misdemeanor process, demonstrating how that process has effectively abandoned the individuated model of guilt and lost many of the essential characteristics of a classic "criminal" system of legal judgment. It then explores civil scholarship's insights into the substantive power that informal aggregations can exert over liability rules and outcomes, in particular how mass settlement scenarios can generate no-fault liability regimes with high risks of fraud. The Article concludes that the misdemeanor system as it currently stands does not function as a traditional "criminal" system of judgment in large part because aggregation erodes the substantive content of criminal convictions.

Introduction I. The Anti-Aggregation Principle in Criminal Law A. Theoretical Commitments to Individuation B. Substantive Individuation in Criminal Law C. Procedural Individuation D. Aggregation at Sentencing E. Permissible Procedural Aggregation II. Informal Aggregation III. Informal Aggregation in the Urban Misdemeanor Process A. Policing 1. Aggregation in Stops 2. Aggregation in Arrests B. Bail C. Prosecutorial Screening D. Defense Counsel: "Meet 'Em and Plead 'Em" Lawyering E. Off-the-Rack Plea Bargains F. Judges and the Mass Court Process G. The Defendant IV. The Substantive Effects of Informal Aggregation: Lessons from the Civil Side A. The Power of Affirmative Informal Aggregation B. How Mass Representation Erodes Fault V. The Oxymoron of Aggregate Criminal Guilt Conclusion INTRODUCTION

The concept of criminal guilt is fundamentally individuated. The idea that someone is "guilty"--that he or she "committed a crime"--refers inexorably to that particular individual and his or her actions and intentions. Not all criminal legal concepts are individuated in this way. Sentencing categories, CompStat policing, even inferences about probable cause or reasonable suspicion often rest quite properly on categorical reasoning and generalizations about human behavior. But the ultimate determination of personal guilt is special. It constitutes a unique sort of statement about individual action and culpability, the polar opposite of "guilt by association." Likewise, the consequences of a conviction--punishment, stigma, and other burdens--are justified largely by reference to the notion that a particular criminal offender personally deserves those burdens. In the simplest terms, we are permitted to punish "criminals"--people who have sustained convictions--because getting convicted indicates that a particular person did something that can and should be punished.

Because of the individualized nature of the underlying concept of criminal liability, the basic rules and procedures by which liability is imposed are themselves strongly individuated. They are designed, at least in theory, to ensure that convictions properly attach to the individuals who actually committed particular crimes. In effect, the demand for individualized evidence and individuated proceedings reflects a deeper understanding that the ultimate decision to impose legal guilt is particular to that defendant and therefore requires an individuated path.

In the massive world of petty offense processing, that fundamental commitment to individuation has eroded. The urban misdemeanor system in particular is permeated by various forms of aggregation and group-based processing. More than any other area of the criminal system, misdemeanor defendants are identified, processed, convicted, and punished in large numbers based on generalized characteristics through procedures that are insensitive to individual evidence or circumstances. Some of these "aggregations" take place during policing; others take place during the mass adjudication process. At each stage, the sheer scale and institutional habits of the urban petty offense system put immense pressure on decision-makers to forgo individualized considerations. The resulting decisions are thus unmoored from individuated evidence and made without the particularized scrutiny promised by bedrock due process norms.

The aggregations of the urban misdemeanor system are informal, often institutionally based, and take different forms. For example, order maintenance policing often involves the arrest of groups of people driven by aggregate generalizations about age, neighborhood, and race. Later in the process, overworked public defenders typically advise clients to accept pleas based on aggregate criteria such as the "market price" for that offense in that jurisdiction, rather than the individual evidence or characteristics of that particular defendant. Bail is often set based on a schedule; punishments are standardized to the offense rather than the offender. While the aggregating or nonindividualistic tendencies at each stage may appear tolerable for that particular decision-maker, or tempered by the possibility of later individuated consideration, taken together the aggregate tendencies swamp the whole. As a result, the misdemeanor process is dominated by group inferences and aggregate institutional habits, and only weakly tied to the sorts of individuated demands for evidence and process that assure the validity of criminal convictions.

As a result of these various aggregating tendencies, the urban misdemeanor process is in tension with many core legitimating features of the criminal process itself. Most fundamentally, misdemeanor processing is lackadaisical about individual guilt, i.e., the idea that criminal liability with its personal stigma and social consequences can only attach to individuals, not to groups, and that liability should be based on actus reus and mens rea, i.e., what individuals do and intend. Instead, the process tends to select and convict people en masse without the standard procedural checks that ask whether individual defendants actually did what they are accused of doing. Accordingly, these aggregating tendencies are not merely procedural flaws but conceptual game-changers: taken together they call into question whether the urban petty offense system actually selects and adjudicates guilt based on individual criminal culpability. While there is no precise moment when the process declares guilt based on group membership, the collective effects of aggregation drive the process in that direction. At its worst, these aggregating tendencies indicate that, in an important sense, the urban misdemeanor system does not behave in the individuated ways that a "criminal system," with all its moral and punitive power, is supposed to behave in order to wield the unique authority of criminal justice.

The criminal discourse does not openly acknowledge the formative influence of aggregation on misdemeanors. This is in part because the petty offense process is rarely conceptualized as a unified whole. Instead, each stage--especially urban policing--tends to get scrutinized on its own terms with limited reference to what happens at other stages in the process. For example, there is a robust literature on the racially skewed, indiscriminate sweeping quality of urban policing processes such as order maintenance and zero tolerance. A different scholarship criticizes the mass processing of urban petty offenders by overburdened and under-resourced public defender offices. The full picture, however, is even more troubling than the individual critiques. Because each stage tolerates decisions made in the aggregate based on generalizations, earlier aggregations slip through and are reinforced by later ones. Not only does adjudication neglect to check the overly generalized decisions made during investigation, it permits new aggregations to leave their mark.

Perhaps more fundamentally, the criminal discourse fails to acknowledge the force of its own aggregating tendencies because they are forbidden. At rock bottom, it is illegitimate to impose criminal convictions in the aggregate, and so traditional doctrines and frameworks do not accommodate such descriptions. Not so in the civil literature. Because civil law makes room for formal aggregations such as class actions and multidistrict litigation, the scholarship has better analytic tools to recognize the impact of informal aggregations that occur without legal or judicial imprimatur. (1)

In particular, the civil literature offers two insights into the substantive effects of informal aggregation that have surprising resonance in the misdemeanor context. The first is the recognition that an individual aggregator--such as a large well-resourced plaintiff or prosecutor's office--can shape the litigation process to impose enormous pressure to settle on small dispersed parties who lack resources and incentives to contest small claims. In effect, the power to informally aggregate others is a form of socio-legal authority. Second, the mass settlement environment can create an informal "no-fault" regime in which liability is presumed once an allegation of injury (or in the criminal...