SMALL CRIMES, BIG INJUSTICES.

• Author: Bibas, Stephanos
• Position: Book review

PUNISHMENT WITHOUT CRIME: HOW OUR MASSIVE MISDEMEANOR SYSTEM TRAPS THE INNOCENT AND MAKES AMERICA MORE UNEQUAL. By Alexandra Natapoff. New York: Basic Books. 2018. Pp.xi, 335. $19.99.

INTRODUCTION

Murder captures the imagination. The bloody knife, the smoking gun, the electric chair--all are staples of legal thrillers, police procedurals, and true crime. Murders and other serious felonies simultaneously horrify, outrage, scare, and fascinate us.

Like popular imagination, legal scholars fixate on the most serious crimes. Criminal procedures guarantee felony defendants appointed counsel, petit-jury trials, and often grand-jury indictments. Our legal system is supposed to ensure careful investigation and vigorous adversarial testing before it brands someone a felon and imprisons him.

Even in serious cases, the reality falls far short of that ideal. Police sometimes hurry to close out cases without systematically pursuing every lead. Prosecutors sometimes file charges without delving into the evidence and then avoid trials by plea bargaining. Underfunded defense lawyers often juggle hundreds or even thousands of cases without time to investigate them, so they encourage most clients to take those plea deals. It should shock us that serious cases are hurried along.

But felonies, let alone serious felonies, are only the tip of the iceberg. The three million or so felony filings in America each year are dwarfed by four times as many misdemeanor filings. We tend to ignore these more minor cases because they seem unimportant: Instead of years-long prison sentences, defendants face at most months in jail, or sometimes no jail time at all. Those defendants go without grand juries, petit-jury trials, and sometimes even defense counsel. As Josh Bowers notes, jaded criminal-justice professionals slight these cases as "disposables," junk, garbage. (1)

Groups like the National Association of Criminal Defense Lawyers have long struggled to draw attention to the base of the iceberg, submerged from public view. But for a long time, few legal scholars (with the notable exception of Malcolm Feeley) focused specifically on misdemeanors. Thankfully, this has begun to change. Important work by Josh Bowers, Issa Kohler-Hausmann, and others has thrown a spotlight on how the rule of law breaks down beneath the surface, out of sight.

No one has played a bigger role in drawing attention to, and critiquing, misdemeanor criminal justice than Alexandra Natapoff. (2) Over the last eight years, her work has been required reading for anyone interested in this hidden world. As with her previous work on snitching, Natapoff brings to bear a legal scholar's precision, a public defender's savvy and passion, and a sociologist's critique.

Natapoff's new book on misdemeanors, Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal, is an ambitious tapestry of doctrines, journalism, empirical research, and public policy. Grounded in a wealth of experience, data, theory, and law, it conveys a simple and powerful message: minor criminal cases matter. Even seemingly trivial sanctions and criminal records harm the poor and the powerless. And a society founded on the rule of law must not ignore wrongful convictions, racial disparities, wealth effects, overpunishment, unchecked discretion, and municipal financial hunger. Though individual cases appear so small that they fly under the radar, collectively they matter a lot. We dare not ignore them any longer.

Some readers will take issue with Natapoff's apparent skepticism about the value of much low-level criminal justice, especially in what she and many others call victimless cases. Others may bridle at her uncritical embrace of the adversarial system's ideal, or her relative lack of concern with caseload pressures, fiscal constraints, and other forces that make us fall short of our ideals. Still others will note Natapoff's ambivalence about moralizing, populism, and federalism. And cynics will grumble about how much easier it is to critique a creaky system than to fix it. But these differences of opinion should not mask the bigger picture: Natapoff's book is an impressive accomplishment. Clearly written and passionately argued, yet careful and fair-minded, it is a powerful indictment of low-level criminal (in)justice.

Part I of this Review addresses the size of misdemeanor justice in America. Few states bother to report reliable statistics, so Natapoff has gone to the trouble of assembling empirical data. As she reports, the collective scope of the federal and state systems is far bigger than we imagined, comprising some 13 million misdemeanors each year (excluding speeding and other minor traffic infractions). Moreover, as Natapoff argues, defendants who are arrested and convicted are branded with a durable status, one that continues to haunt them long after. We must not discount the scope and impact of supposedly minor convictions.

Part II explores Natapoff's concern with the lack of law. A democracy should be transparent and participatory, but misdemeanor justice is opaque and insular. As Natapoff argues, the misdemeanor system is riddled with hidden, unaccountable discretion. It cuts corners, falling far short of the adversarial system's ideals. In its quest for efficiency and speed, it sacrifices legitimacy and procedural fairness.

Part III turns to innocence. As Natapoff charges, the system does not do enough to screen out, or probe, cases that are factually weak. On the contrary, forces like pretrial detention put substantial pressure on innocent defendants to plead guilty. Natapoff also explains how misdemeanor justice often sweeps in, and does not toss out, many cases that are legally weak or morally dubious.

Part IV considers inequality. Natapoff emphasizes that racial and ethnic minorities bear the brunt of misdemeanor enforcement. She also notes the roles of poverty and money, and how monetary incentives (both public and private) extract fines, fees, and bail from those least able to afford them. The toll on poor people's lives is considerable.

Finally, Part V weighs reform. The system is so broken in so many ways that it is hard to know where to begin. Natapoff is admirably clear-eyed about the size of the problem, the barriers to change, and the unintended consequences of previous reforms (like sweeping more people into the system). And she is ambivalent about many possible diagnoses and cures. Nonetheless, she makes a powerful case for a smaller, fairer, less punitive, more transparent, and more equal system. One may not agree with her particular proposals, or may weigh the tradeoffs differently. But one cannot ignore the problems. Particularly in minor criminal cases, the reality of American justice falls far short of its ideals. Natapoff makes a passionate case for large reforms. And by highlighting successful experiments here and there, she gives hope that at least some change is possible.

1. SCOPE AND IMPACT

   Natapoff's first contribution is to shed light on how big the misdemeanor system actually is. It is hard to critique a system without first understanding its scope. But because people assume that misdemeanors do not matter much, many governments do not count them and fail to report good statistics (p. 39). (Ironically, then, the assumption that small crimes do not matter makes it hard to challenge that very assumption.) And even when they do report statistics, our myriad state, county, and local governments classify minor crimes differently, making it hard to compare apples to apples or to add them up.

   The best previous effort to quantify misdemeanors came almost a decade ago. A report of the National Association of Criminal Defense Lawyers estimated that police and prosecutors filed 10.5 million misdemeanor cases each year. But because most states did not report numbers, the report was forced to extrapolate from the twelve states that did report their caseloads. (3)

   Natapoff fills that gap in Chapter Two. She wrote to each state's court administrators and followed up with them. She also tapped and combined new data with judicial and governmental reports and journalistic and nonprofit studies. Her appendix collects data on forty-seven states (plus the District of Columbia) and extrapolates to the remaining three (pp. 254-60).

   She also plows through the welter of labels and categories to come up with a standardized approach. In general, she counts as misdemeanors all low-level criminal offenses, regardless of their labels. But she excludes speeding, civil violations, and other infractions that are not technically crimes (pp. 45-46). And she notes that the felony/misdemeanor line is more porous than we assume: Some misdemeanors, like drunk driving and domestic abuse, are quite serious (p. 47). Many felons are released from prison within a year, serving "misdemeanor-sized sentences" (pp. 47-48). Many felony charges are pleaded down to misdemeanors. And many less-serious felonies are processed quickly and in bulk, like misdemeanors (p. 48).

   However fuzzy at the edges, the misdemeanor category is meaningful, ranging from some drunk driving to minor thefts down to jaywalking. And it is vast: Natapoff counts 13 million misdemeanor case filings in 2015 (p. 41). That is a quarter more than the previous estimate, and between three and four times larger than the annual number of felony filings. And that 13 million does not include speeding and other minor traffic offenses, which many states count as crimes. Including those would add another 20 million, more than doubling the figure and swamping the analysis (p. 45).

   Counting particular crimes is even harder. The data do not pin down how many indictments or informations charge particular crimes. But Natapoff s evidence suggests that hundreds of thousands of charges each year involve marijuana possession, suspended driver's licenses, and order maintenance (like disorderly conduct...