Another Perspective
High Crimes and Misdemeanors
A new report suggests overzealous prosecution of petty crimes doesn’t pay — for taxpayers.
If only the Denver District Attorney’s Office had taken some time to catch up on their reading, they might have saved themselves from a recent tongue-lashing by a federal judge. David Ebel, a judge of the United States Court of Appeals for the 10th Circuit, awarded a female inmate $1.35 million after being repeatedly sexually assaulted by one of the corrections officers. In his ruling, Ebel criticized the Denver D.A.’s office for allowing the corrections officer to plead guilty to a misdemeanor charge for which he only received two months in the slammer and five years’ probation.
In a recent report that will shock taxpaying Americans everywhere, the National Association of Criminal Defense Lawyers (NACDL) verifies the misdemeanor court system is in fact wasting taxpayer time and money prosecuting petty crimes. Not only that, but the report makes a few suggestions that could save taxpayer dollars and turn things around — not the least of which is to avoid encouraging defendants to plead guilty to lesser chargers.
The report reached this conclusion after 18 months of research reviewing courts in seven states, internet surveys of criminal defense attorneys, conferences, and a webinar. According to the report, not only were misdemeanor courts “incapable” of providing accused defendants our Constitution-guaranteed due process, but because of this, every year “millions” of these accused — who also happen to be minorities — can’t afford a lawyer and don’t get the justice every person in court deserves. Equally cringe-worthy is the notion that taxpayers pay for “these gross inefficiencies.” The fact that a typically shark-infested group like the NACDL came to such a conclusion is surprising, more eyebrow-raising is that their proposed solutions lean conservative and borderline-libertarian.
Misdemeanors are the lesser of its evil twin, the felony, and are the reason most people go to court. Common misdemeanor offenses include petty theft, disorderly conduct, public drunkenness, curfew violations, driving under the influence, driving with a suspended license, etc. The problem, the report concluded, is not as much the offenses but the volume, they way they’re prosecuted, and that the whole scenario costs taxpayers too much money.
No one knows exactly how many misdemeanors occur each year but the study reviewed twelve states and from that median, concluded there were 3,544 per 100,000. Using that number, the report concludes there may be as many as ten million more cases than there were roughly thirty years ago.
Adding to that statistic is the defendant’s right to due process and the Sixth Amendment-guaranteed right to counsel. Public defenders can hardly manage such a workload preparing very little for each case, if at all. Because of the lack of time and resources, lawyers end up taking short cuts many of which turn a blind eye to justice and judges end up “pushing defenders and defendants to take action with limited time and knowledge of their cases. This leads to guilty pleas by the innocent, inappropriate sentences, and wrongful incarceration, all at taxpayer expense.”
The report proposed some solutions that make literal dollars and conservative sense. For example, right now, taxpayers spend roughly $80 per inmate per day to lock up misdemeanants accused of things like turnstile jumping, dog leash violations, driving with a suspended license and feeding the homeless. It doesn’t take the mind of a lawyer to figure courts should look at the crime again and ask: Does this crime affect public safety? Does it warrant the cost to taxpayers? Taxpayers don’t need to pay for folks to watch cable in a detention center for staying out too late. The report cited an example of an area in Washington state that, in essence, diverts some of these offenses to penalties that costs less, frees up the court more and actually generates some income.
Mark Herman, a criminal defense attorney in Minneapolis who has operated his own practice for twelve years agreed that such a solution seems convincing—they’re even looking to copy Washington’s example there. “There are categories of misdemeanors that prosecuting them is a waste of money. Driving with a suspension should not be prosecuted in a traditional sense.”
Still, despite that acknowledgement, Herman disagreed with many of the report’s conclusions. He has never observed a person forced to appear in court without an attorney unless by choice and was disappointed in the simple nature of the recommendation to make sure the punishment fits the crime. “It comes down to budget. Every state is strapped. Making a first-time DUI punishable with just a ticket might expedite the process and save money, but it may not always guarantee the defendant justice under the law and it’s not doing public safety any favors.”
A worthwhile point. Though taxpayers might be looking for some favors, or at least some relief, too.
About the Author
Nicole Russell writes from Northern Virginia.
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Ryan| 6.24.09 @ 9:08AM
There may also be a certain point to a decriminalization (note I'm NOT saying legalization) of marijuana here.
Another quick note: libertarians may have a point to make if they didn't hang their hat so much on drug legalization, a topic only they seem to care about.
Rob Spencer| 6.24.09 @ 9:35AM
It seems that we're only hearing from one side here, namely the defense. Shouldn't we hear from the people as well, before we come to any conclusions?
I'm sure defense attorneys would love to see misdemeanors become as trivial as infractions, but if a law is valid it must be enforced.
John Navratil| 6.24.09 @ 9:40AM
It would have been nice to see something in this study about the generation of revenue from traffic violations.
The City of Houston issues about 75 thousand tickets per month for with an average revenue per ticket issued (not conviction) of $26.51. The almost $2 million per month generated is almost half the total Municipal Courts revenue of just over $4 million per month.
Half the criminality in Houston is committed by people on their way to work. Who'da thunk it?
Sean| 6.24.09 @ 9:44AM
Why would defense attorneys want to lose out on work that all these misdemeanors create? We really need to have less laws and criminalization in society. Get rid of some of these revenue generating farces.
Pingback| 6.24.09 @ 10:04AM
Beef Casserole » Curbed: BPC Crime Wave Hits Whistle-Blower Criminal News Stories links to this page. Here’s an excerpt:
Alan Brooks| 6.24.09 @ 10:16AM
libertarians don't even care about legalization, they just want to get in your face.
they can hardly get elected to anything they are so fratricidal. good thing too.
Oldefarte| 6.24.09 @ 10:37AM
Solution: Just let the arresting police officers take a baseball bat into the holding cell of the defendant and spend maybe 15 minutes of time with him/her; and then let the defendant go free!!!!
L. Ross| 6.24.09 @ 11:32AM
Speaking from personal experience, I have been accused of a midemeanor crime. "Speed past a beach." I drove past a beach on the Sacramento river too fast in my ski boat. Not in a no-wake zone, just up on a plane about 100 feet from shore. The fine was over $800, and the "crime" is a midemeanor. I wasn't close to anyone, didn't hit anything or hurt anybody. Speed past a beach. This was a waste of court time, and an abuse of the public by our "public servants", pure and simple.
I will say that I'm glad I didn't get 15 minutes of stick time for that offense, as Oldefarte suggested. Maybe some criminal punishments do need to be rethought. As the California tax base erodes down to near zero, be careful on the roads. I guarantee you will see "creative taxation" in this state, as police are taken off actual law enfrocement responsibilities to increase the revenue of their municipalities via increased traffic tickets.
WJ| 6.24.09 @ 1:28PM
Truly a one-sided article that made me go "really" on a few occassions.
For example, this part "taxpayers spend roughly $80 per inmate per day to lock up misdemeanants accused of things like turnstile jumping, dog leash violations, driving with a suspended license and feeding the homeless."
People charged with misdemeanors are a big part of the jail population? Not convicted, but just CHARGED with a misdemeanor gets you locked up these days for days at a time? REALLY?
Also why use the example of dog leash violations and feeding the homeless?? How many people do you think are sitting in a jail somewhere in the USA who have as there main charge, "feeding the homeless"? This is the best example the author can come up with. REALLY?
Finally, there is no mention of all those originally charged with a felony that have pleaded down to a misdemeanor. Maybe this is the real problem.
J.C.Eaton| 6.24.09 @ 1:56PM
For over thirty years I worked in the criminal justice system, defense, prosecutor, judge. While it is undeniably true that misdemeanor practice is a pain in the ass, these are certainly not all trivial cases. I don't know whose docket the writer was studying but where my Fort Apache was the charges included scores of wife[and husband] beaters, worthless checks[a more genteel way of comitting theft] battery, repeat drunk driving and of course, the ubiquitous, 4th degree sexual assault. A misddameanor carries potential jail time of between five days and nine months. Many of the offenders could and did do that kind of time standing on their proverbial heads, but to you and me, that's serious incarceration. As far as taxpayers go, they [me included] like the notion of saving money, but one indellible lesson I learned sentencing offenders was about the taxpayer:there's two kinds, those who think no one should be in jail 'cept the people that mess with them or theirs, and those who think everyone should be in jail, except them and theirs.
Rob Spencer| 6.24.09 @ 6:23PM
If a law is bad, it must be addressed at the legislative level. If a law is misapplied, the courts must deal with such situations on a case-by-case basis.
As J. C. Eaton suggests, it is dishonest to characterize misdemeanors as trivial. Manslaughter can be a misdemeanor, for example, to counterbalance the dog leash violation example above.
I suspect defense attorneys are looking for a way to convert misdemeanors into paper cases that can be handled virtually completely by support staff. That way they can leverage their time more profitably, charging the same fees as before for less work.
Bill G.| 6.25.09 @ 1:31AM
"I suspect defense attorneys are looking for a way to convert misdemeanors into paper cases that can be handled virtually completely by support staff. That way they can leverage their time more profitably, charging the same fees as before for less work. "
Or we just think there are too many people being prosecuted for stupid things, and we hate to see that. We see a system that is completely overburdened, that forces people to shut up and plead guilty or be punished for taking up the court's and the prosecutor's time. A lot of the things recommended by the NACDL would actually cost us money, but if we were all about money we wouldn't be criminal defense attorneys. We'd be ambulance chasers. We'd be doing something that pays a lot better. Most of us want to see a system that works, one that takes the real threats to society off the streets and away from the rest of us, not one so bogged down in trivial nonsense that it does a piss poor job of fulfilling its purpose. Most of the changes I would like to see happen in the system probably would cost me money, but I don't really care.
max Razzini| 12.4.09 @ 1:54AM
"Or we just think there are too many people being prosecuted for stupid things, and we hate to see that. We see a system that is completely overburdened, that forces people to shut up and plead guilty or be punished for taking up the court's and the prosecutor's time. " well said......... there are millions of people 'sitting on ice' instead of contributing to society. and yes ..... REALLY !
Bill G.| 6.25.09 @ 1:49AM
"Still, despite that acknowledgement, Herman disagreed with many of the report's conclusions. He has never observed a person forced to appear in court without an attorney unless by choice and was disappointed in the simple nature of the recommendation to make sure the punishment fits the crime."
I've seen it happen at least hundreds of times on misdemeanors. In my area if the prosecutor doesn't tell the judge he's seeking jail time on a misdemeanor, the judge will not appoint a public defender. These people will in most cases plead guilty without the benefit of legal counsel, because they are told all they will get is a fine and maybe probation. They may be innocent on one or more of their charges. They may be "overcharged," charged with a more serious crime than they are actually guilty of committing. It may be that the conviction will have some terrible consequences for them in the future that an attorney could have advised them about. If the charge can't be beaten or amended there may be some way to keep it off of their records but no one is going to tell them about it. I've seen it happen too many times, unrepresented people pleading to things they should have never pled to because they didn't have a lawyer and didn't know better and later when this seemingly minor conviction is keeping them from their dream job or getting them deported and barred from this country for life, or hurting them in some other major way, too often it's too late to help them.
emo| 6.25.09 @ 7:03AM
"'If only the Denver District Attorney's Office had taken some time to catch up on their reading, they might have saved themselves from a recent tongue-lashing by a federal judge. David Ebel, a judge of the United States Court of Appeals for the 10th Circuit, awarded a female inmate $1.35 million after being repeatedly sexually assaulted by one of the corrections officers. In his ruling, Ebel criticized the Denver D.A.'s office for allowing the corrections officer to plead guilty to a misdemeanor charge for which he only received two months in the slammer and five years' probation. ""
In an article about "petty" crimes, it is odd that the author would use this case as an example
Brat Magursky| 6.25.09 @ 11:52AM
This is nothing new...has anyone ever looked @ a breakdown of where a fine payment goes ? i.e. peace officer training; 2 or 3 court\law enforcement retirement funds; law library & then restitution. In Georgia a recent law was passed doubling the fines for "Super Speeders" where the added revenue is used to fund financially ailing trauma centers throughtout the state...before it's over we will have to pay for the gas & wear on a police car that it took to pull us over....
Crusader| 6.25.09 @ 5:16PM
Too many "misdemeanors" (and some felonies) are "malum prohibitum" as opposed to malum en se and are nothing more than a city/county/state money-making scheme. We probably commit scores of misdemeanors every day and just don't know it or are lucky a cop was not around to witness the "crime."
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Jenna Matthews| 8.30.11 @ 2:09PM
I see a huge issue with this argument. As a taxpaying citizen I am also not happy with all the money we spend every year, but we need to remember that the laws were established for a reason, to maintain order in society. If we were to lesson the punishment of these crimes (and yes, minor or not they are still crimes), then where do we draw the line? If we legalize marijuana and people start experimenting with harder drugs then do we consider legalizing that as well? If anything, we have to start from the bottom up and put our greatest efforts towards education so people can pull themselves out of those bad financial situations so they won't have to resort to such criminal acts. Yes, this does not pertain to every single individual but it is still one step closer to solving this problem. Especially since a lot more homes and stores are installing security systems (If you are not sure what I'm talking about, check out http://www.homesecuritysystems.net/), it is a lot easier for people to get caught. Plain and simple, don't do the crime and you won't do the time. -Jenna