Atwater and the Misdemeanor Carceral State

Abstract

In Abolition Constitutionalism, 133 Harv. L. Rev. 1 (2019), Professor Dorothy Roberts invites scholars to reconsider mass incarceration in light of abolitionist principles rooted in the Reconstruction Amendments. This Response takes up that invitation by analyzing misdemeanor arrest doctrine and the expansive reach of the modern misdemeanor carceral state. It does so by revisiting one of the foundational carceral decisions in the criminal procedure pantheon, Atwater v. City of Lago Vista, which radically expanded the police power to incarcerate by authorizing custodial arrests and intrusive searches for any minor offense, including fine-only traffic offenses. The Response explores Atwater’s empirical, doctrinal, and normative investment in an expansive police power, including: how the decision misrepresents and understates the significance of the low level offense machinery; how it converts racial profiling into jailtime; and how the decision authorizes police to incarcerate even where the democratically elected state legislature has expressly decided that incarceration would be excessive. The Response then extends the analysis to Atwater’s progeny to reveal broadly how misdemeanor arrest doctrine increasingly normalizes and deregulates the state’s deployment of force, fear, and incarceration as regular features of governance. The Response concludes that the abolitionist inquiry can help us appreciate the growing tension between misdemeanor arrest doctrine and the liberty and equality commitments of the Bill of Rights.