Another Perspective

High Crimes and Misdemeanors

A new report suggests overzealous prosecution of petty crimes doesn't pay -- for taxpayers.

By 6.24.09

Send to Kindle

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.

Like this Article

Print this Article

Print Article
About the Author

Nicole Russell writes from Northern Virginia.