In recent months, some New York district attorneys’ offices and the New York courts have issued statements proclaiming their commitment to equality and anti-racism. They’ve also expressed their interest in both protecting the safety of the community as the state seeks a careful balance between reopening the court system and protecting the community from risks associated with COVID-19.
If these entities are serious about addressing both of these critical issues, a good place to start would be reimagining the prosecution of low level offenses. With cases backlogged and judges processing a fraction of the cases they used to every day, courts and prosecutors should not sweat the small stuff—that is, misdemeanors, which are, by definition, “minor wrongdoings.”
Notably, these two issues are raised in tandem, and by some calculations, they go hand in hand. After all, COVID-19 has a disparate impact on black men, whether because of co-morbidity, genetics and/or the nature of their jobs, putting them in positions of greater risk as they are constrained to work in low-paying jobs that remain critical for the functioning of society.
At the same time, COVID isn’t just a black person issue, and misdemeanors, while low-level offenses (defined in NY as offenses for which a sentence of at least 15 days but no more than one year can be imposed) are still crimes.
Even prosecutors and courts seem to agree that these cases are not worthy of much attention. Statewide, approximately 44% of misdemeanor cases last year wound up as dismissals. Another 30% of cases ended in non-criminal dispositions, offenses that don’t even rise to the level of misdemeanors.
In the city, the numbers are even starker. Most misdemeanor cases are dismissed; only 12.6% wind up as misdemeanor convictions.
To be fair, most are first offenses and given ACDs, adjournments in contemplation of dismissal. If they aren’t arrested for six months, or one year for drugs, the case is automatically dismissed. Essentially, it’s a warning shot across the bow, a “first crime free” as a message to straighten up. It’s a good policy and prevents a lot of heartache in the future.
But in the time of COVID, the stakes are upped, with arraignments being delayed, meaning people sitting in jail, children sitting at home unfed, jobs lost, and all the usual consequences that stem from an arrest exacerbated. Then comes the big boom, that an arrestee is housed on the Rock while his right to be brought before a judge and arraigned is denied because Governor Andy Cuomo, with the approval of the courts, has decided it’s too darn hard to make the system run during a pandemic.
Does anyone arrested for a misdemeanor deserve to get COVID? And, of course, this raises the obvious next question, should they die for it?
There is only one answer to this question. Of course not. And anyone arguing that they should have thought of that before committing the crime needs to take serious stock of his life.
But what, then, do we do about misdemeanors? Bear in mind, they may range from protest related at the moment to minor assaults and thefts. Some are the sort of malum prohibitum “offenses” that people demanded at a moment when it seems like a good idea, such as riding a bicycle on the sidewalk or carrying an open alcoholic beverage in public, while others aren’t quite so benign, punching someone or stealing $999 worth of property. That could buy a pretty sweet flat screen TV, and one can’t exactly blame a store for not being cool with somebody walking it out the door.
The easiest way to ameliorate the situation would be to filter out cases before they even become cases. Millions of protesters nationwide are urging police and policymakers to demonstrate that black lives matter, in part by reducing over-policing of communities of color. But prosecutors also have the opportunity to turn off the spigot—that is, cases charging people (disproportionately people of color) flowing into the criminal justice system. The police may arrest, but prosecutors may determine, as they did recently in the case of Akbar Rodgers, that justice might be served by using their discretion to dismiss.
More to the point, prosecutors could decide not to prosecute some cases at all. Most of the boroughs’ prosecutors, for instance, declined to prosecute non-violent protesters. Last year of the 12,658 cases prosecutors declined to prosecute in New York, fewer than 100 were outside of the city.
There’s a tendency when addressing a broad swathe of issues to do a little tricky conflation, raising the example of the least benign crimes committed by the most sympathetic defendants, and using them as your paradigm for your desired outcome. While the argument here bears some of that, it also leaves sufficient wiggle room for a more valid point, that prosecutors have the authority to exercise discretion during a pandemic to distinguish between the more serious cases, and the more serious defendants (after your first 34 misdemeanor convictions, the argument that you’re just a victim of racism pales a bit).
Whether your passions are inflamed by the disproportionate focus on black and Hispanic people, the fact remains that these cases are going nowhere, aren’t all (or mostly) serious, have deleterious collateral consequences that are further exacerbated by COVID and are not, under any circumstances, deserving of the death penalty.
There is much about the law relating to misdemeanor offenses that deserves revisiting, as they reflect the same syllogism that so often gets us into trouble creating crimes because of transitory outrage that linger and do harm long after their utility. Remember New York’s dreaded gravity knife law, which was twice repealed and twice had the repeal vetoed by Cuomo? And when the pandemic is over, it would be great to use this moment to thoughtfully vet our criminal laws to eliminate those that really aren’t worth someone dying over.
But for now, while COVID-19 is brutally real, while constitutionally-mandated court processes are put on the back burner, and while human beings could well die, New York’s prosecutors need to be brutal in declining to prosecute petty offenses. If they’re bad dudes, they’ll be back later. If they’re not, then society is safe, and no harm done, including to the people who would otherwise suffer needlessly during this crisis.