Misdemeanors by the Numbers

Abstract

Recent scholarship has underlined the importance of criminal misdemeanor law enforcement, including the impact of public-order policing on communities of color, the collateral consequences of misdemeanor arrest or conviction, and the use of misdemeanor prosecution to raise municipal revenue. But despite the fact that misdemeanors represent more than three-quarters of all criminal cases filed annually in the United States, our knowledge of misdemeanor case processing is based mostly on anecdote and extremely localized research. This Article represents the most substantial empirical analysis of misdemeanor case processing to date. Using multiple court-record datasets, covering several million cases across eight diverse jurisdictions, we present a detailed documentation of misdemeanor case processing from the date of filing through adjudication and sentencing.

The resulting portrait reveals a system that disproportionately impacts poor people and people of color. Between 2011 and 2016, each jurisdiction studied relied on monetary bail, which resulted in high rates of pretrial detention even at relatively low amounts, and imposed court costs upon conviction. There were substantial racial disparities in case-filing rates across locales and offense categories. The data also, however, highlight profound jurisdictional heterogeneity in how misdemeanors are defined and prosecuted. The variation suggests that misdemeanor adjudication systems may have fundamentally different characters, and serve different functions, from place to place. It thus presents a major challenge to efforts to describe and theorize the contemporary landscape of misdemeanor justice. At the most fundamental level, the variation calls into question the coherence of the very concept of a misdemeanor, or of misdemeanor criminal justice. As appreciation for the significance of lowlevel law enforcement builds, we urge scholars and policymakers to attend carefully to the complexity of this sub-felony world.

Keywords: criminal law, misdemeanors, law enforcement, collateral consequences, race, minorities, criminal justice, probation, discrimination, bail, pretrial detention, prosecution, incarceration

JEL Classification: K14, K40, K41