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Prosecuting Misdemeanors

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Jenny Roberts discusses the role of prosecutors in the misdemeanor system.

Image courtesy of interviewee. April 30, 2024

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This video video discusses the issues related to misdemeanor prosecution and the broader system of mass criminalization in the United States, emphasizing the significant problems of data lack, discretionary power of prosecutors, and racial disparities. The speaker reflects on their past experiences with misdemeanor cases and highlights the severe consequences faced by individuals, including lengthy jail times just to see a judge or lawyer for petty offenses.

The discussion includes statistics on the number of misdemeanor prosecutions (approximately 13.2 million annually), the impact of bail on defendants pleading guilty, and the extremely brief appearances most defendants have in court. Notably, studies reveal that defendants detained on misdemeanors are more likely to be convicted and receive harsher sentences compared to those who are released.

This video video outlines the role of prosecutors in the charging process, plea bargains, and declining to prosecute cases, noting that racial and socioeconomic disparities heavily influence outcomes. In particular, white defendants are found to have higher rates of having their charges dismissed compared to Black defendants.

Additionally, it acknowledges the collateral consequences of misdemeanor convictions, which can include loss of employment, housing, and even deportation. The speaker calls for future research to understand the consequences of prosecutorial discretion and its effects on communities, particularly marginalized groups. The conclusion stresses the need for significant reform in handling misdemeanors to improve public safety and promote fairness in the judicial process.

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X-TIMESTAMP-MAP:LOCAL=00:00:00.000,MPEGTS=900000

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Theory has been pretty thoroughly debunked.

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Um, but that was when I was in practice.

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So I saw a lot of misdemeanor cases all the time,

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and many of them very, very petty, where people were

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spending time in jail just to see a judge and meet a lawyer.

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Um, and that really led me when I became an academic

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to start thinking about how

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while mass incarceration a term we're all sort of used

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to hearing is indeed a big problem in this country,

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an enormous problem.

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Um, we actually have a system of mass criminalization,

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and that is a broader system than our system

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of mass incarceration.

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So mass criminalization includes mass incarceration,

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but it also encompasses the mass misdemeanor criminalization

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that we see in this country.

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Um, and so those are some of the things that motivated me,

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to start writing about misdemeanors.

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Sure. Well, you know, there's, there's a real lack

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of data on misdemeanor arrests,

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prosecution policing in the United States.

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Um, you know, part of this is simply

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that some things just weren't documented.

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Other things were not, aggregated at the federal level.

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The last five years, there've been a couple of major efforts

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to document how many misdemeanors are prosecuted.

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Um, cases are filed in the United States

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across jurisdictions.

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Um, and the agreement was, it is about 13.2 million.

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That's a conservative estimate.

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It probably leaves out a bunch of traffic misdemeanors.

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Um, but those efforts were based on data

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that is now almost 10 years old.

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And of course, the picture is always shifting.

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So, there's a real, there's a real lack of data just on

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how many misdemeanors we even have.

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I will, I can talk a little bit about the FBI.

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The last data that,

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they have published at this point from 2019, shows,

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that of all of the arrests

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that happened in the United States, drugs continue

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to be the biggest category,

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at 1.5 million plus arrests per year.

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And within that category, 87% are for possession,

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not sailor manufacturing.

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And within that 87%, 32% are still

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marijuana possession in 2019 when we'd already started

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to see a lot of legalization and decriminalization.

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Um, so that just gives you an idea of how

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enormous this mass misdemeanor system is.

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Um, in terms of some of the other research that's out there,

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there have been some studies on bail

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and misdemeanors, which make it very clear that

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if someone is held in on bail in a misdemeanor case,

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it is much more likely that that person will plead guilty

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and they will get a higher sentence than

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someone who is released.

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Um, in fact, it is widely known amongst practitioners

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that if a client is held in on bail on a misdemeanor

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case, often a guilty plea is the only way out to get out.

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Um, there was a recent study that encompassed hundreds

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of thousands of misdemeanor cases,

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and it found that defendants

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who were detained on a misdemeanor are actually 25% more

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likely to be convict convicted.

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43% were likely

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to get a jail sentence than a similarly situated

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defendant who had been released.

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Um, there. So that's one study.

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Um, you know, in terms of other studies that have been done,

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there's a, there is a large scale study

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of Florida's misdemeanor courts, which at the time

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that the study was done,

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a half a million people face misdemeanor charges in Florida.

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Each year, almost 70%

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of all defendants in the misdemeanor court pled guilty

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or what's called no contest, which is

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legally similar to a guilty plea.

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At their first appearance at their arraignment,

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the first time they appeared in court case, over 70%

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of defendants, 82% of those arraignments,

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those first appearances lasted three minutes or less.

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Almost all of them were finished within five minutes.

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And this study also showed that if you're held on bail,

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you're much more likely to plead guilty often without any

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lawyer present.

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Um, so that's some of the research.

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Um, I can talk about declination research as well.

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Um, so there's also been some research,

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in what's called prosecutorial declination.

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And that is when prosecutors exercised the discretion

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to decline to charge a misdemeanor arrest

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that the police have brought to them.

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Um, the studies have shown in the past that

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that rarely happens.

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So, for example,

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there was a study looking at Iowa prosecutor's declination

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rates, for public order misdemeanors in 2008.

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Um, that was the lowest category of declination.

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You'd think public order misdemeanors,

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disorderly conduct trespassing, other, it could include,

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many, many things in that kind of public disorder

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or public order offense category.

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You'd think that would be the highest rate of declination

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where prosecutors might say, we're not gonna

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go forward with these cases.

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In fact, it was the lowest level of declination rates

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amongst any lower, even than felony declaration

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declination rates in Iowa, New York had similar trends.

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Um, there was a study of Alaska misdemeanors in 2015

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that found the declination rate was less than 4%

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more recently.

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And I think this is an interesting area that's developing.

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We're seeing whole scale declinations by,

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so-called progressive prosecutors who have issued directives

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to their line, prosecutors saying, decline to charge in all

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of these category of cases.

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So for example, in Los Angeles,

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when district attorney George Gaston Pub Gascon published a

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directive to his line prosecutors on 13 categories of cases

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where they should decline to charge with narrow exceptions,

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they had 38,000 declinations in a period of 11 months.

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So those are some of the studies,

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although I have raised discrimination earlier on,

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but I can, I can put that at the end. Um, if you've,

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If you've prepared something, Jenny for this,

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you don't need me happy to just kick you off. I mean, would

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Yeah, just kick me off and I'll just go through it.

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I think it works with, okay.

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In the United States, there are, there's a variety

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of reasons that come together, that lead to the

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incredible discretionary power held by prosecutors

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and a power that effectively determines the outcome

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of most misdemeanor cases.

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Those reasons are structural, institutional, and practical.

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So I'm gonna talk about a few of them.

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Um, first of all, you've got the legislatures.

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Legislatures have really deferred to prosecutors

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by enacting very broad and overlapping criminal laws.

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And the expectation is that, prosecutors will sift

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through these, or maybe some legislators expectation is

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that prosecutors will sift through these

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and make wise decisions about

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what best advances public safety.

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That simply hasn't come to pass as the studies on low levels

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of decla declinations or declining to prosecute, show.

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Um, so that's the sort

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of legislative deferral role in giving

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prosecutors great power.

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Um, another thing,

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that gives prosecutors great power is a really weak

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to almost non-existent judicial review

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of misdemeanor convictions.

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Most judges, this is changing a little,

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but most judges are former prosecutors.

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So there's a sort of natural built in deference

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to their former colleagues.

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Um, judges in the lower criminal courts

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where misdemeanors are prosecuted, have

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very high volume.

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They don't have a lot of time, they rush.

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Um, and, even in jurisdictions that are not overwhelmed,

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judges are still rushing, which is very discouraging to see.

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Um, and very few people will file

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or pursue appeals in misdemeanor cases.

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So you don't have that appellate level of review.

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Um, and then, you know, a final factor, I mean,

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there are many more, but,

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but another factor is really the lack

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of defense counsel in many misdemeanor cases.

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So you'll have jurisdictions where, individuals charged

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with a misdemeanor are really pressured to waive,

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and I'm making air quotes here for a reason,

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their right to counsel.

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Um, they are told that there's a fee if they want

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to have counsel, they are told

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that their case will be put over

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and maybe bail will be set if they wanna wait

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to talk to a lawyer.

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Um, this doesn't happen in every jurisdiction,

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but it happens in too many when there are defenders in

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misdemeanor cases, they're really too overwhelmed

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to be a meaningful check on prosecutorial

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power and discretion.

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Um, so those are some of the sort of institutional

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and structural factors that come to play,

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in the misdemeanor context.

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Um, there are a couple of other factors

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that are very important to mention.

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One are well documented racial disparities in the

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misdemeanor realm,

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and that's particularly true in certain categories of cases.

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Um, and, you know, this is what

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we might call the dangers of discretion.

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If you've got a lot of discretion, the danger is

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that you will exercise that in a way that is bias.

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And unfortunately, the research supports that

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that will be racial gender,

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and other kinds of bias

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that will come out in the exercise of that discretion.

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Um, and you know, more anecdotally, I would observe

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that it does seem that power, power,

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and there's great power in, in the power to prosecute,

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does seem to sometimes block the ability to make

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rational decisions that truly advance public safety.

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And to avoid decisions like mass misdemeanor prosecutions

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that might hurt public safety in the end

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and to sort of look at things in the longer term.

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What are we really trying to do here?

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Is this working or not?

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Um, so on the racial bias front,

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I'll give you an example here.

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There was a study, a recent study of Wisconsin case cases.

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Um, the author Carlos, he controlled for a large number

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of variables that included criminal history type of charge.

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Um, and he found that white defendants were 75% more likely

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than black defendants to have all

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of their misdemeanor charges

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that carried a potential imprisonment sentence either

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dropped, dismissed or amended to a lesser charge.

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Um, and he found that black defendants convicted

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of a misdemeanor were more likely to be punished

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by incarceration than white defendants.

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So these are the kind of stark racial biases,

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that we see play out.

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Um, perhaps the biggest factor that,

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it, other than racial bias that you have

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to think about in the misdemeanor realm is that

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unlike in the felony realm, the direct punishment

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of misdemeanors is very often completely overshadowed by

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what are called, collateral consequences

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of an arrest or conviction.

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It's a kind of unfortunate name

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because they're certainly not collateral

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in the misdemeanor context.

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They sort of are the major consequence.

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And what these are all the things

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that are in this are not the sentence.

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So on a misdemeanor, you might get a fine or probation

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or some community service, you might get some jail time.

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Um, those are typical misdemeanor direct sentences,

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but if you walk out with that conviction, you might

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be deported based on that conviction.

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You might lose your public housing based on that conviction.

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You might find it very hard

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to get employment based on that conviction.

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Um, so those are some examples of the,

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so-called collateral consequences

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that really overshadow the direct consequences

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of any conviction.

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Um, and the last thing I'll mention here is,

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the dynamic of the prosecutors

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who are handling misdemeanor cases tend in most

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jurisdictions to be the least experienced prosecutors.

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Um, and that can be really problematic,

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because when you're not experienced,

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every case might seem like the most important

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case that you've come across.

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Um, and you know, you might lack the kind of life experience

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and perspective, that,

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you would want a prosecutor

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to have in exercising their discretion about

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these low level cases.

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Um, there's, you know,

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new prosecutors are generally gonna be less comfortable

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exercising that discretion,

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and they might not have a lot

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of guidelines about exercising that discretion.

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There certainly are not a lot of published guidelines

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and data about how prosecutors should be

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exercising that discretion.

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So that, that's another element that's very important here.

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Yeah, no, I mean, big part. Yeah, it is a big part of it.

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I can certainly, no, I can talk about, I can,

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I've talked about, so it already, but what do you think?

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So the prosecutorial decision making power

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and discretion is important at every key stage of a case,

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I would say the most important is the charging stage,

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because the charging stage is when prosecutors can stop the

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wheels, they can decide to decline, to prosecute.

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They can start the prosecution of a case

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and offer what's called a deferred adjudication,

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which I'll talk about at a later stage.

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But really that initial decision,

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we're not even gonna prosecute.

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That could be for many reasons.

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It could be this case is too petty,

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we have other things to focus on.

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This person should not have been arrested for littering,

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or they shouldn't have been arrested for jaywalking.

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This is not how we wanna expend resources.

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And it's not good public policy to saddle someone

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with a misdemeanor record for that kind of

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activity if it even happened.

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Um, so, the reason that's so important is

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because when you are charged, a criminal record is created,

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even if it's an arrest record.

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That arrest record, as we now know, follows people

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around sometimes for the rest of their lives

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and can really have big consequences

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on employers or landlords.

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You know, they're going online, they're looking it up.

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There's, there's really wide public accessibility

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to these kinds of arrest records now

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that there weren't even 15, 10, 15 years ago.

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Um, so that's a really important stage.

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Um, the bail stage, you know, prosecutors play a role here.

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Judges set bail, sure,

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but judges listen

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to prosecutorial recommendations about whether

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or not to set bail.

14:52.315 --> 14:55.375
Um, and so that is quite significant.

14:55.955 --> 14:58.575
Um, if a prosecutor says, we're not asking

14:58.635 --> 15:02.845
for bail in a case, the plea bargaining stage

15:02.985 --> 15:04.645
and sentencing recommendations,

15:04.675 --> 15:06.285
I'll let me talk about those together.

15:06.285 --> 15:10.225
Those are enormously influential

15:10.415 --> 15:12.025
what the prosecutor does here.

15:12.525 --> 15:16.445
Um, if the prosecutor didn't decline

15:16.465 --> 15:17.725
to prosecute a misdemeanor

15:17.725 --> 15:19.565
and they went ahead with the prosecution

15:20.105 --> 15:23.085
at the plea bargaining stage, they can now say, okay,

15:23.545 --> 15:25.885
we will dismiss the case even though we filed it.

15:26.105 --> 15:29.405
If you do X or y pay your parking tickets.

15:29.705 --> 15:33.845
We will dismiss your driving with a suspended license, do a

15:34.355 --> 15:36.565
drug education online or program.

15:37.105 --> 15:40.005
We will dismiss the drug charges if you complete

15:40.025 --> 15:41.125
all of the requirements.

15:41.705 --> 15:44.565
Um, that's really called a deferred adjudication.

15:45.425 --> 15:50.165
Um, unfortunately there are well-documented racial

15:50.435 --> 15:52.925
disparities in misdemeanor plea bargaining.

15:53.265 --> 15:57.325
Um, I talked about those earlier where, you know, if, if,

15:57.705 --> 16:01.885
you look at Wisconsin cases and you look at black

16:01.885 --> 16:05.325
and white defendants, white defendants are much more likely

16:05.625 --> 16:08.965
to have 75% more likely to have all

16:08.965 --> 16:11.605
of their misdemeanor charges carrying potential imprisonment

16:11.635 --> 16:13.805
drop dismissed or amended to a lesser charge.

16:14.135 --> 16:17.685
Those are prosecutorial decisions at that case,

16:17.785 --> 16:19.045
at at that stage rather.

16:19.545 --> 16:22.325
Um, and so, you know, this is an,

16:22.885 --> 16:25.685
a very important stage.

16:25.685 --> 16:27.405
Once you get past sentencing,

16:27.715 --> 16:30.085
there's actually a prosecutorial involvement,

16:30.505 --> 16:32.825
post-conviction.

16:33.405 --> 16:36.835
So sealing an expungement of

16:37.575 --> 16:38.675
not just misdemeanors,

16:38.675 --> 16:42.595
but felony criminal records is perhaps the fastest moving

16:42.705 --> 16:43.955
legislative area.

16:44.575 --> 16:48.555
Um, in all of the criminal legal system, there have been

16:49.295 --> 16:51.835
new ceiling and expungement statutes passed.

16:52.085 --> 16:54.835
There have been, expanded ceiling

16:54.895 --> 16:57.835
and expungement statutes to include felonies

16:58.135 --> 17:01.475
to be automatic rather than requiring somebody

17:01.475 --> 17:02.595
to file something.

17:03.475 --> 17:04.835
Honestly, the reason for that is

17:04.835 --> 17:07.315
because we have mass misdemeanor criminalization.

17:07.775 --> 17:10.595
Um, and if we didn't have mass misdemeanor criminalization,

17:10.615 --> 17:13.315
we might not need the bandaid of sealing an expungement.

17:13.695 --> 17:16.915
But here prosecutors have played some role, at,

17:16.975 --> 17:19.155
in the individual case role

17:19.335 --> 17:20.835
or level, they can

17:21.455 --> 17:24.075
object under the statute in some jurisdictions.

17:24.095 --> 17:27.035
And so whether they object or not can be very significant,

17:27.575 --> 17:30.475
but really the bigger role here has been the prosecutorial

17:30.875 --> 17:33.515
presence in the legislative process, whether

17:33.615 --> 17:36.635
or not they're going to support expanded

17:37.785 --> 17:39.355
sealing and expungement.

17:39.535 --> 17:42.195
I'm using those words interchangeably legislation.

17:42.935 --> 17:45.995
Um, and then finally I'll mention,

17:46.535 --> 17:50.965
the prosecutorial role in wrongful convictions.

17:51.545 --> 17:54.685
Um, we know from the National Registry of Exonerations

17:54.795 --> 17:57.885
that there are misdemeanor exonerations.

17:58.185 --> 18:02.365
Um, for example, there was mass misdemeanor exoneration,

18:02.985 --> 18:07.125
in a Texas jurisdiction where field testing,

18:07.175 --> 18:10.325
which is notoriously unreliable quick testing

18:10.385 --> 18:11.485
of drugs in the field,

18:11.485 --> 18:13.325
rather than in the laboratory context,

18:14.175 --> 18:16.365
we're showing up positive for things that were not

18:17.005 --> 18:19.045
actually controlled dangerous substances,

18:19.045 --> 18:21.605
which is what's required to be convicted of a drug offense.

18:21.905 --> 18:24.405
And in some of these cases, people said, that's Advil

18:24.545 --> 18:25.565
or that's candy.

18:26.305 --> 18:29.005
But the field test was positive. They were held in on bail.

18:29.005 --> 18:31.645
They had to plead guilty to the misdemeanor to get out.

18:32.135 --> 18:37.025
Years later, an investigative reporter,

18:38.155 --> 18:42.305
found all of these field tests, where,

18:43.815 --> 18:46.045
later laboratory testing showed

18:46.195 --> 18:49.045
that they were not in fact unlawful drugs.

18:49.225 --> 18:52.925
Um, and so there was this, a mass exoneration in a number

18:52.985 --> 18:55.525
of these cases, but really, you know,

18:55.525 --> 18:57.165
we know very little about

18:57.305 --> 18:59.885
how many misdemeanor wrongful convictions there are.

19:00.305 --> 19:02.405
Um, and it really remains to be seen

19:02.515 --> 19:04.485
what the prosecutor's role will be.

19:04.505 --> 19:07.085
In the Texas case, the prosecutor was very front

19:07.085 --> 19:09.885
and center in saying, I wanna fix this.

19:10.265 --> 19:12.485
Um, I am doing the right thing.

19:12.505 --> 19:13.965
But of course, they only did that

19:13.965 --> 19:16.365
after an investigative reporter reported on it

19:16.365 --> 19:17.725
and put enormous pressure.

19:18.105 --> 19:20.085
So whether prosecutors will step up

19:20.185 --> 19:22.445
and try to undo some of the wrongful

19:22.545 --> 19:23.805
and harmful convictions

19:24.225 --> 19:26.685
of the misdemeanor past really remains to be seen.

19:27.185 --> 19:30.765
The areas for future research in the misdemeanor

19:30.815 --> 19:32.205
realm are wide open.

19:32.275 --> 19:34.125
There's so much that needs to be done.

19:34.315 --> 19:36.085
I'll give you just a few examples.

19:36.345 --> 19:40.205
Um, the, so-called Progressive Prosecutor Movement.

19:40.245 --> 19:43.285
These are prosecutors who, who call themselves or,

19:43.585 --> 19:48.105
or wish to be seen as progressive on certain issues.

19:48.105 --> 19:49.345
And some of them are more

19:49.485 --> 19:53.305
or less, depending on the jurisdiction they have,

19:53.725 --> 19:57.865
as I talked about earlier, put forth declination policies

19:57.885 --> 20:00.025
for large categories of misdemeanor cases.

20:00.245 --> 20:02.545
So you'll have a prosecutor saying,

20:02.665 --> 20:06.385
I am no longer prosecuting marijuana even though it's still

20:06.425 --> 20:07.745
a crime in our state.

20:09.405 --> 20:11.265
We don't know yet,

20:11.855 --> 20:15.265
what those declination policies are going to lead to.

20:16.045 --> 20:20.305
Um, you know, did, did that actually advance public safety?

20:20.725 --> 20:21.985
Did it hurt public safety?

20:22.365 --> 20:24.465
We have a little insight into that.

20:24.465 --> 20:27.625
There was one study, of,

20:28.205 --> 20:30.825
Boston prosecutors where they were declining

20:30.885 --> 20:33.065
to charge in nonviolent misdemeanor cases,

20:33.125 --> 20:35.665
and the researchers found,

20:35.665 --> 20:38.425
that there was a large reduction in the likelihood

20:38.445 --> 20:41.065
of new criminal complaints against the same individual

20:41.335 --> 20:42.425
over the next two years.

20:42.525 --> 20:46.465
So that shows less misdemeanor prosecution, less recidivism.

20:47.285 --> 20:49.385
Um, and that's a very important finding.

20:49.485 --> 20:54.185
So replication of that is a ripe area for future research.

20:54.445 --> 20:58.985
Of course, research into, the racial

20:59.735 --> 21:03.585
disparities in misdemeanor prosecutions in the area of

21:04.545 --> 21:06.145
marijuana remains a crime

21:06.205 --> 21:08.265
and really in any misdemeanor area.

21:08.725 --> 21:11.545
Um, we already know it's happening,

21:12.815 --> 21:15.875
but of course, further study will confirm whether

21:15.905 --> 21:17.635
that continues to happen or not.

21:17.735 --> 21:19.515
So there's really a lot out there.

21:20.055 --> 21:22.875
You know, in terms of the, the conclusion that, that

21:23.795 --> 21:27.315
I would draw in the implications for all of this is

21:27.665 --> 21:31.315
that we're harming ourselves as a country, both in terms

21:31.415 --> 21:35.375
of the moral compass of what we're doing here

21:35.515 --> 21:36.735
and how that's playing out

21:36.735 --> 21:39.495
and who it's affecting, with misdemeanors

21:39.715 --> 21:43.495
who suffers from misdemeanor convictions is, is biased.

21:43.885 --> 21:46.695
It's unfair. Um, it's counterintuitive.

21:46.805 --> 21:48.375
It's counter to public safety.

21:49.315 --> 21:51.495
Um, so, you know, the, the,

21:51.515 --> 21:54.615
the obvious conclusion would be we should be doing far less

21:54.635 --> 21:57.175
to none of this, in the misdemeanor realm.

21:57.235 --> 21:59.295
And I think we're very long away from

21:59.295 --> 22:00.855
that right now in our society.

22:00.885 --> 22:01.735
Unfortunately.

00:00 - Theory has been pretty thoroughly debunked. but that was when I was in practice. So I saw a lot of misdemeanor cases all the time, and many of them very, very petty, where people were spending time in jail just to see a judge and meet a lawyer. and that really led me when I became an academic

00:19 - to start thinking about how while mass incarceration a term we're all sort of used to hearing is indeed a big problem in this country, an enormous problem. we actually have a system of mass criminalization, and that is a broader system than our system of mass incarceration. So mass criminalization includes mass incarceration, but it also encompasses the mass misdemeanor criminalization that we see in this country.

00:47 - and so those are some of the things that motivated me, to start writing about misdemeanors. Sure. Well, you know, there's, there's a real lack of data on misdemeanor arrests, prosecution policing in the United States. you know, part of this is simply that some things just weren't documented. Other things were not, aggregated at the federal level. The last five years, there've been a couple of major efforts to document how many misdemeanors are prosecuted.

01:18 - cases are filed in the United States across jurisdictions. and the agreement was, it is about 13.2 million. That's a conservative estimate. It probably leaves out a bunch of traffic misdemeanors. but those efforts were based on data that is now almost 10 years old. And of course, the picture is always shifting. So, there's a real, there's a real lack of data just on how many misdemeanors we even have.

01:43 - I will, I can talk a little bit about the FBI. The last data that, they have published at this point from 2019, shows, that of all of the arrests that happened in the United States, drugs continue to be the biggest category, at 1.5 million plus arrests per year. And within that category, 87% are for possession, not sailor manufacturing. And within that 87%, 32% are still

02:17 - marijuana possession in 2019 when we'd already started to see a lot of legalization and decriminalization. so that just gives you an idea of how enormous this mass misdemeanor system is. in terms of some of the other research that's out there, there have been some studies on bail and misdemeanors, which make it very clear that if someone is held in on bail in a misdemeanor case, it is much more likely that that person will plead guilty and they will get a higher sentence than

02:47 - someone who is released. in fact, it is widely known amongst practitioners that if a client is held in on bail on a misdemeanor case, often a guilty plea is the only way out to get out. there was a recent study that encompassed hundreds of thousands of misdemeanor cases, and it found that defendants who were detained on a misdemeanor are actually 25% more likely to be convict convicted. 43% were likely

03:16 - to get a jail sentence than a similarly situated defendant who had been released. there. So that's one study. you know, in terms of other studies that have been done, there's a, there is a large scale study of Florida's misdemeanor courts, which at the time that the study was done, a half a million people face misdemeanor charges in Florida. Each year, almost 70% of all defendants in the misdemeanor court pled guilty

03:44 - or what's called no contest, which is legally similar to a guilty plea. At their first appearance at their arraignment, the first time they appeared in court case, over 70% of defendants, 82% of those arraignments, those first appearances lasted three minutes or less. Almost all of them were finished within five minutes. And this study also showed that if you're held on bail, you're much more likely to plead guilty often without any lawyer present.

04:12 - so that's some of the research. I can talk about declination research as well. so there's also been some research, in what's called prosecutorial declination. And that is when prosecutors exercised the discretion to decline to charge a misdemeanor arrest that the police have brought to them. the studies have shown in the past that that rarely happens. So, for example,

04:40 - there was a study looking at Iowa prosecutor's declination rates, for public order misdemeanors in 2008. that was the lowest category of declination. You'd think public order misdemeanors, disorderly conduct trespassing, other, it could include, many, many things in that kind of public disorder or public order offense category. You'd think that would be the highest rate of declination where prosecutors might say, we're not gonna go forward with these cases.

05:10 - In fact, it was the lowest level of declination rates amongst any lower, even than felony declaration declination rates in Iowa, New York had similar trends. there was a study of Alaska misdemeanors in 2015 that found the declination rate was less than 4% more recently. And I think this is an interesting area that's developing. We're seeing whole scale declinations by, so-called progressive prosecutors who have issued directives to their line, prosecutors saying, decline to charge in all

05:45 - of these category of cases. So for example, in Los Angeles, when district attorney George Gaston Pub Gascon published a directive to his line prosecutors on 13 categories of cases where they should decline to charge with narrow exceptions, they had 38,000 declinations in a period of 11 months. So those are some of the studies, although I have raised discrimination earlier on, but I can, I can put that at the end. if you've, If you've prepared something, Jenny for this,

06:15 - you don't need me happy to just kick you off. I mean, would Yeah, just kick me off and I'll just go through it. I think it works with, okay. In the United States, there are, there's a variety of reasons that come together, that lead to the incredible discretionary power held by prosecutors and a power that effectively determines the outcome of most misdemeanor cases. Those reasons are structural, institutional, and practical. So I'm gonna talk about a few of them.

06:44 - first of all, you've got the legislatures. Legislatures have really deferred to prosecutors by enacting very broad and overlapping criminal laws. And the expectation is that, prosecutors will sift through these, or maybe some legislators expectation is that prosecutors will sift through these and make wise decisions about what best advances public safety. That simply hasn't come to pass as the studies on low levels of decla declinations or declining to prosecute, show.

07:16 - so that's the sort of legislative deferral role in giving prosecutors great power. another thing, that gives prosecutors great power is a really weak to almost non-existent judicial review of misdemeanor convictions. Most judges, this is changing a little, but most judges are former prosecutors. So there's a sort of natural built in deference

07:39 - to their former colleagues. judges in the lower criminal courts where misdemeanors are prosecuted, have very high volume. They don't have a lot of time, they rush. and, even in jurisdictions that are not overwhelmed, judges are still rushing, which is very discouraging to see. and very few people will file or pursue appeals in misdemeanor cases. So you don't have that appellate level of review.

08:10 - and then, you know, a final factor, I mean, there are many more, but, but another factor is really the lack of defense counsel in many misdemeanor cases. So you'll have jurisdictions where, individuals charged with a misdemeanor are really pressured to waive, and I'm making air quotes here for a reason, their right to counsel. they are told that there's a fee if they want to have counsel, they are told

08:37 - that their case will be put over and maybe bail will be set if they wanna wait to talk to a lawyer. this doesn't happen in every jurisdiction, but it happens in too many when there are defenders in misdemeanor cases, they're really too overwhelmed to be a meaningful check on prosecutorial power and discretion. so those are some of the sort of institutional and structural factors that come to play,

09:04 - in the misdemeanor context. there are a couple of other factors that are very important to mention. One are well documented racial disparities in the misdemeanor realm, and that's particularly true in certain categories of cases. and, you know, this is what we might call the dangers of discretion. If you've got a lot of discretion, the danger is that you will exercise that in a way that is bias.

09:30 - And unfortunately, the research supports that that will be racial gender, and other kinds of bias that will come out in the exercise of that discretion. and you know, more anecdotally, I would observe that it does seem that power, power, and there's great power in, in the power to prosecute, does seem to sometimes block the ability to make rational decisions that truly advance public safety. And to avoid decisions like mass misdemeanor prosecutions

10:04 - that might hurt public safety in the end and to sort of look at things in the longer term. What are we really trying to do here? Is this working or not? so on the racial bias front, I'll give you an example here. There was a study, a recent study of Wisconsin case cases. the author Carlos, he controlled for a large number of variables that included criminal history type of charge. and he found that white defendants were 75% more likely

10:36 - than black defendants to have all of their misdemeanor charges that carried a potential imprisonment sentence either dropped, dismissed or amended to a lesser charge. and he found that black defendants convicted of a misdemeanor were more likely to be punished by incarceration than white defendants. So these are the kind of stark racial biases, that we see play out. perhaps the biggest factor that,

11:03 - it, other than racial bias that you have to think about in the misdemeanor realm is that unlike in the felony realm, the direct punishment of misdemeanors is very often completely overshadowed by what are called, collateral consequences of an arrest or conviction. It's a kind of unfortunate name because they're certainly not collateral in the misdemeanor context. They sort of are the major consequence.

11:31 - And what these are all the things that are in this are not the sentence. So on a misdemeanor, you might get a fine or probation or some community service, you might get some jail time. those are typical misdemeanor direct sentences, but if you walk out with that conviction, you might be deported based on that conviction. You might lose your public housing based on that conviction. You might find it very hard to get employment based on that conviction.

11:58 - so those are some examples of the, so-called collateral consequences that really overshadow the direct consequences of any conviction. and the last thing I'll mention here is, the dynamic of the prosecutors who are handling misdemeanor cases tend in most jurisdictions to be the least experienced prosecutors. and that can be really problematic, because when you're not experienced,

12:27 - every case might seem like the most important case that you've come across. and you know, you might lack the kind of life experience and perspective, that, you would want a prosecutor to have in exercising their discretion about these low level cases. there's, you know, new prosecutors are generally gonna be less comfortable exercising that discretion,

12:52 - and they might not have a lot of guidelines about exercising that discretion. There certainly are not a lot of published guidelines and data about how prosecutors should be exercising that discretion. So that, that's another element that's very important here. Yeah, no, I mean, big part. Yeah, it is a big part of it. I can certainly, no, I can talk about, I can, I've talked about, so it already, but what do you think? So the prosecutorial decision making power

13:18 - and discretion is important at every key stage of a case, I would say the most important is the charging stage, because the charging stage is when prosecutors can stop the wheels, they can decide to decline, to prosecute. They can start the prosecution of a case and offer what's called a deferred adjudication, which I'll talk about at a later stage. But really that initial decision, we're not even gonna prosecute. That could be for many reasons.

13:48 - It could be this case is too petty, we have other things to focus on. This person should not have been arrested for littering, or they shouldn't have been arrested for jaywalking. This is not how we wanna expend resources. And it's not good public policy to saddle someone with a misdemeanor record for that kind of activity if it even happened. so, the reason that's so important is because when you are charged, a criminal record is created,

14:15 - even if it's an arrest record. That arrest record, as we now know, follows people around sometimes for the rest of their lives and can really have big consequences on employers or landlords. You know, they're going online, they're looking it up. There's, there's really wide public accessibility to these kinds of arrest records now that there weren't even 15, 10, 15 years ago. so that's a really important stage.

14:41 - the bail stage, you know, prosecutors play a role here. Judges set bail, sure, but judges listen to prosecutorial recommendations about whether or not to set bail. and so that is quite significant. if a prosecutor says, we're not asking for bail in a case, the plea bargaining stage and sentencing recommendations, I'll let me talk about those together.

15:06 - Those are enormously influential what the prosecutor does here. if the prosecutor didn't decline to prosecute a misdemeanor and they went ahead with the prosecution at the plea bargaining stage, they can now say, okay, we will dismiss the case even though we filed it. If you do X or y pay your parking tickets. We will dismiss your driving with a suspended license, do a drug education online or program.

15:37 - We will dismiss the drug charges if you complete all of the requirements. that's really called a deferred adjudication. unfortunately there are well-documented racial disparities in misdemeanor plea bargaining. I talked about those earlier where, you know, if, if, you look at Wisconsin cases and you look at black and white defendants, white defendants are much more likely to have 75% more likely to have all of their misdemeanor charges carrying potential imprisonment

16:11 - drop dismissed or amended to a lesser charge. Those are prosecutorial decisions at that case, at at that stage rather. and so, you know, this is an, a very important stage. Once you get past sentencing, there's actually a prosecutorial involvement, post-conviction. So sealing an expungement of not just misdemeanors,

16:38 - but felony criminal records is perhaps the fastest moving legislative area. in all of the criminal legal system, there have been new ceiling and expungement statutes passed. There have been, expanded ceiling and expungement statutes to include felonies to be automatic rather than requiring somebody to file something. Honestly, the reason for that is because we have mass misdemeanor criminalization.

17:07 - and if we didn't have mass misdemeanor criminalization, we might not need the bandaid of sealing an expungement. But here prosecutors have played some role, at, in the individual case role or level, they can object under the statute in some jurisdictions. And so whether they object or not can be very significant, but really the bigger role here has been the prosecutorial presence in the legislative process, whether or not they're going to support expanded

17:37 - sealing and expungement. I'm using those words interchangeably legislation. and then finally I'll mention, the prosecutorial role in wrongful convictions. we know from the National Registry of Exonerations that there are misdemeanor exonerations. for example, there was mass misdemeanor exoneration, in a Texas jurisdiction where field testing, which is notoriously unreliable quick testing of drugs in the field,

18:11 - rather than in the laboratory context, we're showing up positive for things that were not actually controlled dangerous substances, which is what's required to be convicted of a drug offense. And in some of these cases, people said, that's Advil or that's candy. But the field test was positive. They were held in on bail. They had to plead guilty to the misdemeanor to get out. Years later, an investigative reporter, found all of these field tests, where,

18:43 - later laboratory testing showed that they were not in fact unlawful drugs. and so there was this, a mass exoneration in a number of these cases, but really, you know, we know very little about how many misdemeanor wrongful convictions there are. and it really remains to be seen what the prosecutor's role will be. In the Texas case, the prosecutor was very front and center in saying, I wanna fix this.

19:10 - I am doing the right thing. But of course, they only did that after an investigative reporter reported on it and put enormous pressure. So whether prosecutors will step up and try to undo some of the wrongful and harmful convictions of the misdemeanor past really remains to be seen. The areas for future research in the misdemeanor realm are wide open.

19:32 - There's so much that needs to be done. I'll give you just a few examples. the, so-called Progressive Prosecutor Movement. These are prosecutors who, who call themselves or, or wish to be seen as progressive on certain issues. And some of them are more or less, depending on the jurisdiction they have, as I talked about earlier, put forth declination policies for large categories of misdemeanor cases. So you'll have a prosecutor saying,

20:02 - I am no longer prosecuting marijuana even though it's still a crime in our state. We don't know yet, what those declination policies are going to lead to. you know, did, did that actually advance public safety? Did it hurt public safety? We have a little insight into that. There was one study, of, Boston prosecutors where they were declining to charge in nonviolent misdemeanor cases,

20:33 - and the researchers found, that there was a large reduction in the likelihood of new criminal complaints against the same individual over the next two years. So that shows less misdemeanor prosecution, less recidivism. and that's a very important finding. So replication of that is a ripe area for future research. Of course, research into, the racial disparities in misdemeanor prosecutions in the area of marijuana remains a crime

21:06 - and really in any misdemeanor area. we already know it's happening, but of course, further study will confirm whether that continues to happen or not. So there's really a lot out there. You know, in terms of the, the conclusion that, that I would draw in the implications for all of this is that we're harming ourselves as a country, both in terms of the moral compass of what we're doing here and how that's playing out

21:36 - and who it's affecting, with misdemeanors who suffers from misdemeanor convictions is, is biased. It's unfair. it's counterintuitive. It's counter to public safety. so, you know, the, the, the obvious conclusion would be we should be doing far less to none of this, in the misdemeanor realm. And I think we're very long away from that right now in our society. Unfortunately.

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