The Yale Law Journal

April 2019

The High Stakes of Low-Level Criminal Justice

Criminal LawCriminal ProcedureConstitutional Law

abstract. 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.

author. Professor of Law, University of California, Irvine School of Law. Special thanks to Guy-Uriel Charles, Sharon Dolovich, Mona Lynch, and Doug NeJaime. My thanks also to the editors of the Yale Law Journal for their excellent work.