Bulk Misdemeanor Justice – Postscript (Response) by Stephanos Bibas

Alexandra Natapoff’s article, Misdemeanors, shines a much-needed spotlight on the mass production of criminal justice and injustice in millions of low-level cases. For many decades, academics have dwelt ad nauseam on the biggest, sexiest criminal cases, especially capital and other serious felonies such as murder and rape. Courts and commentators have spun out elaborate accounts of the precise procedural guarantees that should govern adversarial combat between prosecutors and appointed defense counsel in these cases. But, as I have argued elsewhere, in making rules for the small sliver of jury trials, judges and scholars have neglected the much larger world of plea bargaining.

Natapoff draws on her experience in criminal defense to explore how far out of sync the ideal of adversarial due process is from the reality of cookie-cutter dispositions. She trenchantly explains how many low-level cases depend almost entirely on a police officer’s word, with no meaningful prosecutorial screening or defense counsel testing, or even no defense counsel at all.