Thirteen million times each year, American prosecutors file criminal misdemeanor charges. These crimes are often described as “minor,” ranging from “victimless crimes” (jaywalking and loitering) to harmful infractions (domestic violence and drunk driving). But someone who is arrested does not automatically become a defendant. After each arrest, the prosecutor faces a choice: to press charges or not?
Prosecutors generally weigh the evidence carefully for serious crimes like murder before deciding whether to charge. But for misdemeanors, prosecutors almost always file formal charges, even though many cases are dismissed before trial. Kreindler professor of law Alexandra Natapoff argues that by rubber-stamping so many arrests, prosecutors neglect their duty to screen cases. As a result, millions of Americans enter the justice system, becoming defendants for charges that are often dropped.
In her new paper, “Misdemeanor Declination: A Theory of Internal Separation of Powers,” Natapoff highlights a specific prosecutorial decision point: “declination.” Occurring shortly after arrest, declination—also called “no papering”—means that the prosecutor never files charges against the accused. Thus, the arrested individual is freed without having become a formal defendant or spending much time in jail.
Natapoff grew interested in misdemeanors because they make up the vast majority of the American criminal docket but are often neglected by academics and practitioners. She views misdemeanors “as a way of understanding how the American criminal system actually works most of the time for most people.”
At present, she argues, prosecutors in many jurisdictions hastily decide whether to press charges, and they often assign their least experienced attorneys to the misdemeanor docket. In some districts, police themselves can press charges after making an arrest. “That moment of prosecutorial decision,” she says, “is really key to understanding the size, the sloppiness, the biases, and the challenges of the misdemeanor criminal docket.”
In arguing that prosecutors should more frequently decline misdemeanors, Natapoff in effect asserts that being arrested for a misdemeanor is already a kind of punishment, and that further prosecution is often overkill. Though misdemeanor data are incomplete, available information suggests that one-third of cases are eventually dismissed (most by prosecutors, some by judges). The sometimes-long period between arrest and dismissal is costly for both the government (which has to process a case and sometimes hold the detainee) and defendants (who may lose their jobs while awaiting trial). “Prosecutors should step up their efforts to make prosecutorial decisions at the front end of the process and not put it off,” she says. What she calls “equitable decision-making” could reduce harm in millions of cases that not even prosecutors believe are worth pursuing.
Declination is more than a mere tool of convenience. Though the legislature and judiciary often struggle to check the executive, she says, prosecutors can review the choices of police officers from within the executive branch. “Police and prosecutors have very different jobs,” she says. “They have different authority. Different kinds of people take those jobs. There’s an enormous amount of actual separation between them.” Declination, she wrote, is “the mother of all internal checks,” a loud challenge to arrests.
A lack of prosecutorial discretion for misdemeanors can have disastrous impacts on Americans. These types of cases are almost always resolved through plea deals: defendants admit guilt in exchange for release from jail or for a lighter punishment than they might face at trial. If all arrests become cases, she wrote, “for many defendants, simply getting charged will mean accepting conviction.” Such practices are especially concerning for misdemeanors, where arrest patterns are prone to various forms of bias. Without a strong check from prosecutors, she wrote, misdemeanors enable “racialized policing practices to formally criminalize thousands of Black men for low-level offenses such as trespassing, loitering, disorderly conduct, jaywalking, and traffic violations.”
In the last few years, a new wave of prosecutors has expressed interest in reforming misdemeanors. Across the country, newly elected prosecutors have campaigned on the promise of presumptively declining certain types of misdemeanors. Such policies are beginning to bear fruit: a 2022 study from Harvard Kennedy School’s Rappaport Institute for Greater Boston found that three years into new declination policies, Boston had significantly reduced prosecution rates for nonviolent misdemeanors without increasing recidivism rates.
Some types of misdemeanors are especially strong candidates for reform. “Order maintenance” offenses such as loitering, trespassing, disorderly conduct, and resisting arrest are often policed in racially and economically biased ways, she argues. Low-level drug possession—especially of marijuana—might be better served in “more of a public-health valence” rather than criminally, Natapoff says. And punishing crimes of poverty such as homelessness or driving with a suspended license often “make poverty worse,” she adds.
Natapoff proposes three ways to induce a higher declination rate, given the large percentage of misdemeanors eventually dismissed. Most simply, local prosecutors’ offices can strengthen their internal declination policies. Absent internal reform, other branches of government may need to get involved. State legislatures can raise the level of suspicion needed to charge someone—increasing the evidence threshold “is a way of saying, ‘Stop and think’” before bringing a case, she says. Finally—and most dramatically—courts could rescind prosecutors’ longstanding right to absolute immunity. Presently, prosecutors have total immunity from suits over their legal decisions, but police officers can be sued for violating someone’s clearly established legal rights. Natapoff argues that prosecutors who do not properly screen cases and rubber-stamp arrests “look an awful lot like police.” “The argument,” she continues, “goes: They should be accorded the same protection the police get, but no more, unless they’re going to act like prosecutors and make the decision that they’re paid to make.”
She hopes that prosecutors and legislatures in coming years will start to examine misdemeanor processes more closely. “If we treated misdemeanor criminal cases with the care, attention, concern, and the resources that they deserve in light of the true impact that they have on people, on the system, and on communities,” she says, “then we would care a lot more about that initial decision: whether an arrest should become a criminal case.”
