Faculty Bibliography

Millions of times every year, American prosecutors make the all-important decision whether to decline or file formal criminal charges after police have made an arrest. This declination decision determines whether an arrest will become a full-fledged criminal case and thus whether an individual arrestee will become a defendant. It establishes the classic dividing line between investigation and adjudication, triggering numerous constitutional consequences. Through declination, prosecutors also check and regulate police decision-making within the executive branch. In an era of racialized mass incarceration, prosecutorial declination can function as a mode of equitable gatekeeping, regulating the impact of sloppy or biased policing practices on communities, courts, and the rest of the criminal pipeline. It is therefore a unique structural moment of institutional and constitutional significance. Declination is especially influential because police and prosecutors are the two main decision-makers within the carceral executive branch. This Article conceptualizes the relationship between them as an overlooked example of internal separation of powers, with the declination decision as its most impactful regulatory moment. Administrative law teaches that intrabranch checks are vital, especially when interbranch separation of powers has proven ineffective as it famously has with respect to the penal executive. The prosecutorial declination decision, in turn, is an especially promising intrabranch checking tool. It offers decisional friction, oversight, and accountability within the executive at precisely the moment when good law enforcement decision-making makes a big difference for millions of people. In our massive misdemeanor system, this regulatory promise usually fails. Misdemeanor prosecutors routinely rubber-stamp police arrest decisions and convert arrests automatically into formal charges: namely, they abdicate their screening and checking functions by deferring to police. Misdemeanor declination rates are typically very low—often less than five percent—which means that police effectively get to decide not only who will be arrested but who will be formally charged with a crime. This is not how the criminal system is supposed to work. In administrative law terms, such prosecutorial abdication is a violation of basic branch design and a worrisome species of intrabranch collusion. It is, however, neither universal nor foreordained. Around the country, many newly elected prosecutors have embraced strong misdemeanor declination policies, not only as a way of checking police but increasing equity, efficiency, and accountability. Such policies exemplify how misdemeanor declination is an underappreciated opportunity to regulate the penal executive from within and to mitigate the excesses and injustices of the low-level carceral state.

Failure to address food shortages provoked the French and Russian revolutions and a host of other revolts.

The low-level misdemeanor process is a powerful socio-legal institution that both regulates and generates inequality. At the same time, misdemeanor legal processing often ignores many foundational criminal justice values such as due process, evidence, and even individual guilt.These features are linked: the erosion of the rule of law is one of the concrete mechanisms enabling the misdemeanor system to take aim at the disadvantaged, rather than at the merely guilty. In the book Misdemeanorland, Issa Kohler-Hausmann describes the inegalitarian workings of the misdemeanor legal process in New York City and how it operates as a system of managerial social control over the disadvantaged even when it stops short of convicting and incarcerating them. This Review summarizes the book’s key contributions to the burgeoning scholarly discourse on misdemeanors and then extends its insights about New York to illuminate the broader dynamics and democratic significance of the U.S. misdemeanor process.

Officers quietly wield a lot of unchecked prosecutorial power.

After five decades of punitive expansion, the entire U.S. criminal justice system— mass incarceration, the War on Drugs, police practices, the treatment of juveniles and the mentally ill, glaring racial disparity, the death penalty and more — faces challenging questions. What exactly is criminal justice? How much of it is a system of law and how much is a collection of situational social practices? What roles do the Constitution and the Supreme Court play? How do race and gender shape outcomes? How does change happen, and what changes or adaptations should be pursued? The New Criminal Justice Thinking addresses the challenges of this historic moment by asking essential theoretical and practical questions about how the criminal system operates. In this thorough and thoughtful volume, scholars from across the disciplines of legal theory, sociology, criminology, Critical Race Theory, and organizational theory offer crucial insights into how the criminal system works in both theory and practice. By engaging both classic issues and new understandings, this volume offers a comprehensive framework for thinking about the modern justice system. For those interested in criminal law and justice, The New Criminal Justice Thinking offers a profound discussion of the complexities of our deeply flawed criminal justice system, complexities that neither legal theory nor social science can answer alone.

Terry v. Ohio expanded police authority by creating a new legal category—the stop based on reasonable suspicion, an easier standard to meet than an arrest based on probable cause. The formal line between those two categories, however, has turned out to be blurry. In practice, stops morph easily into arrests even without new evidence, an elision that Terry doctrine does not contemplate. The implications are significant for the enormous misdemeanor arena where legal rules generally lack traction, and Terry stops are common. Once those stops become arrests, they typically convert smoothly into criminal charges, which easily become convictions. Terry stops thus influence eventual outcomes far more than they should given their lightweight evidentiary basis. This slippery slope undermines the integrity of basic distinctions between policing and prosecution throughout the petty offense process, an unprincipled state of affairs exacerbated by the original Terry compromise.

The enormous misdemeanor system is an increasingly important and fertile area of criminal justice reform. With over 10 million cases filed each year, vastly outnumbering felonies, the petty offense process is how most Americans experience the criminal justice system. Characterized largely by speed, informality, and a lack of regulation and transparency, the petty-offense process generates millions of criminal convictions as well as burdensome punishments that affect employment, housing, education, and immigration. This chapter explains the major policy issues raised by the misdemeanor system, including its assembly-line quality, high rates of wrongful conviction, its racial skew, and how it quietly impoverishes working people and the poor. Key targets of reform include arrest, bail, prosecutorial policies, the right to counsel, diversion, decriminalization, debtor’s prison, criminal records, and collateral consequences.

The misdemeanor system is a powerful governance tool. Comprising the vast bulk of the U.S. criminal process, it exerts enormous influence over the disadvantaged populations that are its primary clientele, and profoundly shapes the general character of American criminal justice. Characterized largely by speed, informality, and law enforcement discretion, the petty offense process generates millions of criminal convictions and burdensome punishments in ways that depart significantly from the standard due process model of adversarial adjudication, with special implications for the poor and people of color. This article provides a theoretical overview of the petty offense process and its legal and institutional structures, and explains its sociolegal significance for the criminal system as a whole.

Where Black Lives Matter meets the innocence movement.

As the U.S. rethinks its stance on mass incarceration, misdemeanor decriminalization is an increasingly popular reform. Seen as a potential cure for crowded jails and an overburdened defense bar, many states are eliminating jail time for minor offenses such as marijuana possession and driving violations, and replacing those crimes with so-called “nonjailable” or “fine-only” offenses. This form of reclassification is widely perceived as a way of saving millions of state dollars — nonjailable offenses do not trigger the right to counsel — while easing the punitive impact on defendants, and it has strong support from progressives and conservatives alike. But decriminalization has a little-known dark side. Unlike full legalization, decriminalization preserves many of the punitive features and collateral consequences of the criminal misdemeanor experience, even as it strips defendants of counsel and other procedural protections. It actually expands the reach of the criminal apparatus by making it easier — both logistically and normatively — to impose fines and supervision on an ever-widening population, a population who ironically often ends up incarcerated anyway when they cannot afford the fines or comply with the supervisory conditions. The turn to fine-only offenses and supervision, moreover, has distributive implications. It captures poor, underemployed, drug-dependent, and other disadvantaged defendants for whom fines and supervision are especially burdensome, while permitting well-resourced offenders to exit the process quickly and relatively unscathed. Finally, as courts turn increasingly to fines and fees to fund their own operations, decriminalization threatens to become a kind of regressive tax, turning the poorest populations into funding fodder for the judiciary and other government budgets. In sum, while decriminalization appears to offer relief from the punitive legacy of overcriminalization and mass incarceration, upon closer inspection it turns out to be a highly conflicted regulatory strategy that preserves and even strengthens some of the most problematic aspects of the massive U.S. penal system.

In ways that slip beneath the doctrinal radar, public defenders often behave like social workers. They find drug treatment and jobs for their clients, and intervene with landlords and employers. Conversely — and ironically — many civil welfare service providers act increasingly like law enforcement officials. Teachers call the police on their students, while welfare case workers often refer their clients for prosecution. This role-switching — by criminal lawyers and civil servants alike — is a function of the tight connection between criminalization and poverty: poor people tend to get swept up in the criminal system and such encounters tend to make people poor. This nexus is particularly powerful in the world of minor offenses and urban policing in which crime, unemployment, racial segregation, and lack of social infrastructure swirl around in one large, nearly inextricable mass. As a result, criminal justice actors are heavily preoccupied with defendants’ social welfare even as the welfare state routinely treats its clients as presumptive criminals. These hydraulic forces affect every official actor — from police officers to prosecutors to emergency room nurses and public school teachers. But public defenders play a special role. Their multi-faceted service commitments to both criminal and welfarist outcomes reveal deep features of the criminal system itself and its conflicted governance relationship to its most vulnerable constituents.

Misdemeanors are an increasingly vital arena of criminal justice scholarship and policy. With ten million cases filed each year, and vastly outnumbering felonies, the petty offense is the paradigmatic US crime. Indeed, most Americans experience the criminal system through the petty offense process. This review surveys the major structural and theoretical issues raised by the misdemeanor system, including its assembly-line quality, high rates of wrongful conviction, and powerful influence over the system's class and racial skew. It concludes that misdemeanors offer novel ways of understanding the US criminal justice institution as a whole and open up broad new avenues for inquiry.

The urban misdemeanor process relies on a wide variety of informal groupings and aggregations. Order maintenance police arrest large numbers of people based on neighborhood, age, race, and other generalizations. Prosecutors and public defenders resolve entire classes of minor plea bargains based on standard local practices and pricing. Urban courts process hundreds of cases en masse. At each stage, the pressure to aggregate—to treat people and cases by group—weakens and sometimes eliminates individuated scrutiny of defendants and the evidence in their cases; people are largely evaluated, convicted, and punished by category and based on institutional habit. This wholesale process of creating criminal convictions in the aggregate is in deep tension with core precepts of criminal law, most fundamentally the idea that criminal guilt is an individuated concept reflecting the defendant’s personal culpability. This Article traces the influence of different sorts of aggregation through each step of the urban misdemeanor process, demonstrating how that process has effectively abandoned the individuated model of guilt and lost many of the essential characteristics of a classic “criminal” system of legal judgment. It then explores civil scholarship’s insights into the substantive power that informal aggregations can exert over liability rules and outcomes, in particular how mass settlement scenarios can generate no-fault liability regimes with high risks of fraud. The Article concludes that the misdemeanor system as it currently stands does not function as a traditional “criminal” system of judgment in large part because aggregation erodes the substantive content of criminal convictions.

The criminal defense lawyer occupies a special doctrinal place in criminal procedure. It is the primary structural guarantor of fairness, the single most important source of validation for individual convictions. Conversely, if a person did have a competent lawyer, that generates a set of presumptions that his trial was in fact fair, the evidence sufficient, and his plea knowing and voluntary. This is a highly problematic legal fiction. The presence of counsel advances but cannot guarantee fair trials and voluntary pleas. More fundamentally, a lawyer in an individual case will often be powerless to address a wide variety of systemic injustices. A defendant may be the victim of overbroad laws, racial selectivity in policing, prosecutorial overcharging, judicial hostility to defendants, or harsh mandatory punishments and collateral consequences, none of which his lawyer can meaningfully do anything about. In response to these limitations, criminal scholarship offers a variety of skeptical counter-narratives about the ability of defense counsel to police the accuracy and fairness of their clients’ guilty pleas and sentences. Such skepticism is particularly appropriate in the misdemeanor context, in which millions of cases are created and rushed through an assembly-line process without much evidence or scrutiny. In this world, the presence or absence of counsel is just one piece of a much larger puzzle of systemic dysfunction. Accordingly, while the right to counsel remains an important ingredient in fair trials and legitimate convictions, it cannot bear the curative weight it has been assigned in the modern era of overcriminalization and mass judicial processing. Other legal actors and institutions should share more responsibility for protecting defendants, a responsibility that now rests almost entirely and unrealistically on the shoulders of defense counsel.

Misdemeanor convictions are typically dismissed as low-level events that do not deserve the attention or due process accorded to felonies. And yet with ten million petty cases filed every year, the vast majority of U.S. convictions are misdemeanors. In comparison to felony adjudication, misdemeanor processing is largely informal and deregulated, characterized by high-volume arrests, weak prosecutorial screening, an impoverished defense bar, and high plea rates. Together, these engines generate convictions in bulk, often without meaningful scrutiny of whether those convictions are supported by evidence. Indeed, innocent misdemeanants routinely plead guilty to get out of jail because they cannot afford bail. The consequences of these convictions are significant: in addition to the stigma of a criminal record, misdemeanants are often heavily fined, incarcerated, and/or lose jobs, housing, and educational opportunities. In other words, petty convictions are growing more frequent and burdensome even as we devote fewer institutional resources to ensuring their validity. The misdemeanor phenomenon has profound systemic implications. It invites skepticism about whether thousands of individual misdemeanants are actually guilty. It reveals an important structural feature of the criminal system: that due process and rule-of-law wane at the bottom of the penal pyramid where offenses are pettiest and defendants are poorest. And it is a key ingredient in the racialization of crime, because misdemeanor processing is the mechanism by which poor defendants of color are swept up into the criminal system, i.e., “criminalized,” with little or no regard for their actual guilt. In sum, the misdemeanor process is an institutional gateway that explains many of the criminal system’s dynamics and dysfunctions.

Criminal informants occupy a central role in the US criminal system. Police rely heavily on criminal suspects to obtain information and get warrants, whereas prosecutors often use defendants as information sources in exchange for dropped charges or shorter sentences. This is particularly true in drug cases, which comprise approximately 30 percent of state and federal dockets but are not limited to that arena. The informant deal is widely used in every class of offense, from white-collar crime to child pornography to murder. Although many types of people give information to the government, criminal informants constitute a uniquely important and problematic class of witness because they are offenders who trade information in exchange for leniency for their own offenses. Unlike whistle-blowers or citizens who call 911, criminal informants (sometimes referred to as snitches) provide information in hope of escaping punishment for their own crimes, which has contributed to their well-documented unreliability, among other issues. At the same time, because the government tolerates or even forgives informants’ criminal activities, the informant deal has become a problematic crime-management policy in its own right as well as an independent source of crime in some instances. Criminal informant policies have wide-ranging legal, cultural, and racial implications. For example, because drug enforcement—and thus informant use—is concentrated in poor, minority communities, those neighborhoods have been overexposed to the phenomenon. Consequences include increased crime and violence, unreliable evidence used in warrants and prosecutions, and community distrust of police. The so-called stop snitching phenomenon expressed in rap music and other aspects of popular culture is in part a result of this dynamic. Criminal informants have also been important features in the evolution of the Federal Bureau of Investigation (FBI), the white-collar enforcement strategies of the US Department of Justice, and most recently the war on terror. Finally, the law of informant use is changing; legislatures and governmental commissions in New York, California, Texas, Illinois, and Florida, among others, have considered or passed legal reform.

Albert Burrell spent thirteen years on death row for a murder he did not commit. Atlanta police killed 92-year-old Kathryn Johnston during a misguided raid on her home. After being released by Chicago prosecutors, Darryl Moore—drug dealer, hit man, and rapist—returned home to rape an eleven-year-old girl. Such tragedies are consequences of snitching—police and prosecutors offering deals to criminal offenders in exchange for information. Although it is nearly invisible to the public, criminal snitching has invaded the American legal system in risky and sometimes shocking ways. Snitching is the first comprehensive analysis of this powerful and problematic practice, in which informant deals generate unreliable evidence, allow criminals to escape punishment, endanger the innocent, compromise the integrity of police work, and exacerbate tension between police and poor urban residents. Driven by dozens of real-life stories and debacles, the book exposes the social destruction that snitching can cause in high-crime African American neighborhoods, and how using criminal informants renders our entire penal process more secretive and less fair. Natapoff also uncovers the farreaching legal, political, and cultural significance of snitching: from the war on drugs to hip hop music, from the FBI’s mishandling of its murderous mafia informants to the new surge in white collar and terrorism informing. She explains how existing law functions and proposes new reforms. By delving into the secretive world of criminal informants, Snitching reveals deep and often disturbing truths about the way American justice really works.

The criminal system has an uneasy relationship with information. On the one hand, the criminal process is centrally defined by stringent evidentiary and information rules and a commitment to public transparency. On the other, largely due to the dominance of plea bargaining, criminal liability is determined by all sorts of unregulated, non-public information that never pass through the quality control of evidentiary, discovery, or other criminal procedure restrictions. The result is a process that generates determinations of liability that are often unmoored from systemic information constraints. This phenomenon is exemplified, and intensified, by the widespread use of criminal informants, or "snitching," in which the government trades guilt for information, largely outside the purview of rule-based constraints, judicial review, or public scrutiny. With a special focus on the Supreme Court's decision in United States v. Ruiz, this Article explores the criminal system's putative stance towards the proper use of information in generating convictions, in contrast with actual information practices that undermine some of the system's foundational commitments to accuracy, fairness, and transparency. It concludes that the evolution of this deregulated information culture is altering the functional meaning of criminal guilt.

Over one million defendants pass through the criminal justice system every year, yet we almost never hear from them. From the first Miranda warnings, through trial or guilty plea, and finally at sentencing, most defendants remain silent. They are spoken for by their lawyers or not at all. The criminal system treats this pervasive silencing as protective, a victory for defendants. This Article argues that this silencing is also a massive democratic and human failure. Our democracy prizes individual speech as the main antidote to governmental tyranny, yet it silences the millions of poor, socially disadvantaged individuals who directly face the coercive power of the state. Speech also has important cognitive and dignitary functions: It is through speech that defendants engage with the law, understand it, and express anger, remorse, and their acceptance or rejection of the criminal justice process.Since defendants speak so rarely, however, these speech functions too often go unfulfilled. Finally, silencing excludes defendants from the social narratives that shape the criminal justice system itself, in which society ultimately decides which collective decisions are fair and who should be punished. This Article describes the silencing phenomenon in practice and in doctrine, and identifies the many unrecognized harms that silence causes to individual defendants, to the effectiveness of the criminal justice system, and to the democratic values that underlie the process. It concludes that defendant silencing should be understood and addressed in the con-text of broader inquiries into the (non)adversarial and (un)democratic features of our criminal justice system

The use of criminal informants in the U.S. justice system has become a flourishing socio-legal institution. Every year, tens of thousands of criminal suspects, many of them drug offenders concentrated in inner-city neighborhoods, informally negotiate away liability in exchange for promised cooperation, while law enforcement at the local, state and federal levels rely on ever greater numbers of criminal actors in making basic decisions about investigations and prosecutions. While this marriage of convenience is fraught with peril, it is nearly devoid of judicial or public scrutiny as to the propriety, fairness, or utility of the deals being struck. At the same time, it is a quintessential expression of some of the most contentious characteristics of the modern criminal system: law enforcement discretion, secrecy, and the increasing informality of the adjudication process. The informant institution is also an under-appreciated social force in low-income, high-crime, urban communities in which a high percentage of residents - as many as fifty percent of African American males in some cities - are in contact with the criminal justice system and therefore potentially under pressure to snitch. By relying heavily on snitching, particularly in drug-related cases, law enforcement officials create large numbers of informants who remain at large in the community, engaging in criminal activities while under pressure to provide information about others. These snitches are a communal liability: they increase crime and threaten social organization, interpersonal relationships, and socio-legal norms in their home communities, even as they are tolerated or under-punished by law enforcement because they are useful. This Article conceptualizes the informant institution as an engine of the modern criminal system, both in its operation and its expressive value. Informing shapes the practice of plea bargaining, it heavily influences prosecutorial discretion, and is a major symptom of the increasingly administrative, non-public, non-adversarial nature of the U.S. justice system. For all these reasons, the informant institution has a potentially significant normative impact on systemic legal values; the expressive value of the widespread practice of rewarding criminals even as they continue to commit crimes warrants careful scrutiny. The Article also hypothesizes the harms imposed by the informant institution on socially disadvantaged, high-crime communities in which snitching is common. These harms may include increased crime, the erosion of trust in interpersonal, familial and community relationships and other psychological damage created by pervasive informing, the communal loss of faith in the state, and the undermining of law-abiding norms flowing from law enforcement's rewarding of and complicity in snitch wrongdoing. Because what ails the informant institution is centrally a function of the increasingly secretive discretionary exercise of criminal law enforcement authority, the Article proposes reforms primarily of the sunshine variety. The reforms aim to reduce the secretiveness and lack of accountability surrounding the informal adjudication of informant liability, and to increase legislative control over and public awareness of this quintessentially secretive executive practice.

Despite increasingly visible political conflicts between African Americans, Latinos, Asians, and other groups of color, the Supreme Court has never explicitly articulated a position on how equal protection doctrine addresses conflicts between different racial and ethnic minority groups. As a result, equal protection jurisprudence does not answer the question of whether conflict between minority groups might warrant different treatment than the more familiar conflict between whites and African Americans. This piece analyzes several of the Court's major equal protection decisions in order to challenge the traditional bipolar black-white model that dominates this jurisprudence. It reveals that the Court's current equal protection doctrine exploits the increasingly multiracial character of American society to the detriment of minority groups, subtly invoking the changing racial and ethnic nature of American society to legitimate a retreat from racial remedies and affirmative action. In this way, the nation's new awareness of minority conflict has translated, not into tools to improve minority participation, but into stronger protections for white entitlements. In response, the piece offers an alternative theoretical model of dynamic racial factionalism along Madisonian lines. Such a reinterpretation of the Equal Protection Clause would acknowledge racial group factionalism in general and the persistence of white majority influence in particular. It would better protect racial minorities against discrimination as well as facilitate the full exercise of their political rights.