As the Supreme Court recently acknowledged in Lafler v. Cooper (2012), American criminal justice “is for the most part a system of pleas, not a system of trials.”  Nowhere is that statement truer than in the lower courts, where millions of misdemeanor arrests are resolved, or, to use the lingo of the criminal court, “disposed of,” without even a whiff of a trial.

In a provocative New York Times Op-Ed, “Go to Trial: Crash the Justice System,” Michelle Alexander raised the prospect of organizing people to refuse to plea bargain.  Professor Jenny Roberts takes a cue from Alexander and manages to be even more rebellious.  In Crashing the Misdemeanor System, 70 Wash. & Lee L. Rev. 1089 (2013), she urges much more specifically that defense attorneys focus their energy on taking down extant misdemeanor systems that are best characterized as guilty plea mills.

Roberts argues that “the most minor misdemeanor conviction has serious implications for so many people,” and bemoans the fact that nevertheless most misdemeanors are given short shrift by all institutional players — judges, prosecutors and defense attorneys alike.  Her article is a clarion call for defense attorneys to reimagine, refocus and reinvigorate their misdemeanor practice, especially in an era of massive arrests for minor crimes made popular by Broken Windows, or quality-of-life, policing.

Roberts addresses the literature on, and practice of, criminal defense triage whereby lawyers in public defense organizations give felonies representational priority over so-called minor charges.  She rightly points out that such practice is born ultimately out of a lingering belief that misdemeanors are just not that serious, and takes pains to highlight the myriad disastrous consequences that can flow from a misdemeanor charge.  Further, with misdemeanor arrests far outpacing felonies, it is in those cases where the majority of people experience the criminal justice system.

She argues persuasively that public defense offices should actually consider prioritizing their misdemeanor practice.  After all, in the hurly burly of the typical misdemeanor court, the chances for a defense attorney to uncover, let alone discuss, devastating attendant consequences are remote.  Felony practice, on the other hand, tends to run more slowly and thereby incorporates greater potential and opportunities for defense counsel to surface collateral consequences.

Roberts forces institutional defense attorneys to confront a painful reality – the present, and ever-growing, system of mass arrests for minor crimes can only exist if the defense cooperates and acquiesces in advising guilty pleas, early and often.  She zeroes in specifically on the quick and dirty guilty plea; the practice know derisively, but accurately, as “meet ‘em, greet ‘em and plead ‘em.”  She contends that if defense attorneys paid greater attention to these cases, they would in turn be less likely to advise the accused to plead guilty at the arraignment or initial appearance, and more people would opt to eschew a guilty plea and opt for a trial.  Besides better protecting the accused from potential negative consequences of a plea, the attorney would also finally and truly be providing effective assistance and living up to ethical standards.

She offers specific suggestions for how public defender offices can actualize a heightened approach to misdemeanor practice.  She proposes focusing on public order offenses and/or developing specialized practice groups to develop expertise and effectively and fully litigate the myriad constitutional issues present, and heretofore usually overlooked, in charges like Disorderly Conduct.  Roberts advises offices to adopt policies that, for example, explicitly frown upon practices like “meet, greet, and plead,” and to collect and analyze data on police practices in these cases that have never before made it on to the radar screen.

Roberts is not naïve.  She recognizes how hard it is for entrenched offices and practices to change, and that prosecutors or judges will likely react harshly if suddenly the defense bar stops playing nicely with others.  Nevertheless, she convincingly argues that pushing back against the misdemeanor practice status quo would overload, or “crash,” the system.  This in turn would force police officers and their superiors to think twice about arrests, prosecutors to think harder about cases they forward to court, judges to think more carefully and thoroughly about how they adjudicate, and legislators to ponder what acts should or should not be criminalized.  In the final analysis, crashing the current misdemeanor system will result in huge savings in financial and human terms.