Misdemeanor punishment is often deemed lenient, especially in the shadow of mass incarceration’s long prison sentences. A typical sentence for a misdemeanor commonly consists of probation and a fine. The full collateral and informal consequences of that misdemeanor, however, will often be far more punitive. Those consequences can include months in jail, either pretrial or as a consequence of failing to pay fines and fees; reduced employment and earning capacity triggered by arrest and conviction records; the loss of housing, public benefits, financial aid, and immigration status. In other words, the full punitive consequences of a misdemeanor are far from lenient, and the extra-judicial consequences can so far outweigh the legal sentence that it hardly makes sense to refer to them as “collateral.”
Misdemeanors have traditionally received short shrift in the legal scholarship and in the public debate over criminal justice. But this inattention is a mistake. Misdemeanors make up 80 percent of U.S. criminal dockets. Most convictions in this country are for misdemeanors—this is what our criminal system does most of the time to the most people. For a brief overview of major issues and misdemeanor scholarship, you can take a look at this survey, Misdemeanors, 11 Ann. Rev. L. & Soc. Sci. 255 (2015).
A spate of recent scholarship is starting to delve deeper into key features of the misdemeanor landscape such as low level policing, bail, and debtor’s prison. These articles explicate not only the punitive collateral consequences of a brush with the misdemeanor process, but the systemic forces that make those consequences widespread and difficult to regulate. For example, in Arrests as Regulation, 67 Stan. L. Rev. 809 (2015), Eisha Jain charts how arrests are used not only to initiate criminal cases but as fodder for decisionmakers as diverse as landlords, employers, and social workers. The collateral consequences of even a minor arrest can thus have ripple effects throughout a person’s personal and economic life, even if they are never charged or convicted.
The dramatic influence of bail has become increasingly well-recognized, especially in misdemeanor cases, because of how often it induces guilty pleas by those who cannot afford to pay it. In Toward an Optimal Bail System, 92 N.Y.U. L. Rev. 1300 (2017), Crystal Yang evaluates the full costs of bail, including future economic costs to detained defendants as well as to the state, and balances them against the benefits of pretrial detention. By monetizing the potential social costs and benefits of the bail decision, she offers broad insight into the weighty collateral consequences of pretrial detention for minor offenses.
In a similar economic vein, the past few years have revealed just how often the low level criminal system imprisons people because they cannot pay their debts. In The Excessive Fines Clause: Challenging the Modern Debtors’ Prison, 65 UCLA L. Rev. 2 (2018), Beth Colgan analyzes the constitutionality of the widespread use of monetary sanctions. Such sanctions have special significance for misdemeanors where the long term effects of legal debt, including incarceration, are often wildly disproportionate to the offense. Colgan offers an expanded doctrinal framework for evaluating the direct and indirect consequences of monetary sanctions, squarely confronting the perennial link between misdemeanor punishment and poverty.
These articles represent the tip of the scholarly iceberg. They may not have the word ‘misdemeanor’ in their titles, but they are part of new wave of scholarship that takes the low level criminal process seriously. They are potent reminders that the cumulative burdens of misdemeanor arrest, pre-trial incarceration and debt have substantial systemic significance, and that their punitive consequences can far outweigh formal sentences imposed by low level courts.
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Author: Alexandra Natapoff is Professor of Law at the University of California, Irvine School of Law. A 2016 Guggenheim Fellow, she is the author of a forthcoming book on the American misdemeanor system.