Prof. Natapoff's "Misdemeanors" article honored with 2013 Law and Society Association Article Prize

Professor Alexandra Natapoff was honored with the 2013 Law and Society Association Article Prize for her law review article "Misdemeanors," which was published by the Southern California Law Review.

Abstract:

Misdemeanor convictions are typically dismissed as low-level events that do not deserve the attention or due process accorded to felonies. And yet with ten million petty cases filed every year, the vast majority of U.S. convictions are misdemeanors. In comparison to felony adjudication, misdemeanor processing is largely informal and deregulated, characterized by high-volume arrests, weak prosecutorial screening, an impoverished defense bar, and high plea rates. Together, these engines generate convictions in bulk, often without meaningful scrutiny of whether those convictions are supported by evidence. Indeed, innocent misdemeanants routinely plead guilty to get out of jail because they cannot afford bail. The consequences of these convictions are significant: in addition to the stigma of a criminal record, misdemeanants are often heavily fined, incarcerated, and/or lose jobs, housing, and educational opportunities. In other words, petty convictions are growing more frequent and burdensome even as we devote fewer institutional resources to ensuring their validity.

The misdemeanor phenomenon has profound systemic implications. It invites skepticism about whether thousands of individual misdemeanants are actually guilty. It reveals an important structural feature of the criminal system: that due process and rule-of-law wane at the bottom of the penal pyramid where offenses are pettiest and defendants are poorest. And it is a key ingredient in the racialization of crime, because misdemeanor processing is the mechanism by which poor defendants of color are swept up into the criminal system, i.e., "criminalized," with little or no regard for their actual guilt. In sum, the misdemeanor process is an institutional gateway that explains many of the criminal system's dynamics and dysfunctions.

Why Misdemeanors Aren't so Minor

By Professor Alexandra Natapoff

Yesterday, people across America pleaded guilty to crimes they didn't commit. This isn't something new or extraordinary. Every year, the American criminal system punishes thousands of people who are not guilty. These routine wrongful convictions never make it into headlines because they are misdemeanors, petty offenses like trespassing, disorderly conduct, or loitering. Minor offenses are largely ignored because we are usually focused on the felonies--the rapes, murders, drug crimes, and robberies. But felonies are actually exceptional. Approximately 1 million felony convictions are entered every year; more than 10 million misdemeanor cases are filed in the same time. In most states, misdemeanor dockets are four or five times the size of felony dockets. If you ever enter the American criminal justice system, odds are it will be for a misdemeanor. They may be seen as small-time offenses, but collectively how we process misdemeanors represents an immense and influential public institution. Something so powerful deserves far deeper scrutiny.

Read the full piece on Slate

Prof. Alexandra Natapoff's "Misdemeanors" article highly recommended by Legal Theory Blog

Professor Alexandra Natapoff's recently posted article, "Misdemeanors" (Southern California Law Review, Vol. 85, 2012), was noted as "highly recommended" on Professor Lawrence Solum's Legal Theory Blog.

Prof. Natapoff tracks Congressman Lynch's proposed informant legislation

By Professor Alexandra Natapoff

In the wake of new revelations about FBI informant crimes, U.S. Representative Stephen F. Lynch (D-MA) has introduced important new legislation that would require federal investigative agencies to report their informants' serious crimes to Congress. H.R. 3228, The Confidential Informant Accountability Act, would require the FBI, the DEA, Secret Service, ICE and ATF to report every six months to Congress all "serious crimes" committed by their informants, whether or not those crimes were authorized. "Serious crime" is defined as any serious violent felony, any serious drug crime, or any crime of racketeering, bribery, child pornography, obstruction of justice, or perjury. The bill prohibits the disclosure of informant names, control numbers, or any other personal information that might permit them to be identified. Under the U.S. Attorney General's Guidelines, the FBI is already required to disclose its informants' crimes to federal prosecutors.

The bill would also help the families of two men who were killed in connection with FBI informant Whitey Bulger to recover damages from the FBI. For more background, see these stories in the Boston Globe: Bill would aid kin of two slain men, and Pants on Fire. Full disclosure: I provided information to Congressman Lynch's office in support of this bill and I am strongly in favor of the effort.

Who 'snitching' really betrays

By Professor Alexandra Natapoff

In 1998, I was a community lawyer in inner-city Baltimore and taught an after-school law class for neighborhood kids. One evening, a boy of about 12 said something that would change my thinking forever.

"I got a question," he said, leaning forward intently. "Police let dealers stay on the corner 'cuz they snitching. Is that legal? I mean, can the police do that?" When I explained that they could, he and his friends slumped down in disgust. "That ain't right!" and "The police ain't doing their jobs!" they exclaimed. "So all you gotta do is snitch," another concluded, "and you can keep on dealing."

Fifty years ago, "snitching" had a very different meaning. Last fall, it was claimed that Ernest Withers -- nicknamed the "original civil rights photographer" -- was working as a paid FBI informant even as he snapped iconic pictures of the Rev. Martin Luther King Jr., the Little Rock Nine and striking sanitation workers.

Read the complete posting at CNN.com.

Ninth Circuit overturns murder conviction based on perjured informant testimony

By Professor Alexandra Natapoff

Yesterday, in Maxwell v. Roe, the Ninth Circuit decided that Bobby Joe Maxwell's due process rights were violated in 1984 when the government used Sidney "the Snitch Professor" Storch as the main witness at his multiple homicide trial. L.A. Times story here: Appeals Court overturns murder convictions of alleged L.A. serial killer.

This is an important case for a number of reasons. The first is historical: Storch was one of the most infamous jailhouse snitches in the Los Angeles County Jail during the 1980s, a period in which jailhouse snitch fabrication was rampant, numerous wrongful convictions occurred, and which eventually triggered a massive Grand Jury investigation and strigent reforms in Los Angeles.

The factual basis for the decision is also important. Appellate courts rarely conclude as a factual matter that a witness such as a jailhouse informant committed perjury, which is one of the reasons it is so difficult to overturn a conviction even after a witness recants. See previous post: In the news-- Recantation. In this case, the Ninth Circuit decided that "it was objectively unreasonable for the Superior Court to find that Storch testified truthfully at the 1984 trial," based on Storch's history as an informant and his other lies at trial.

Read the complete posting.

Massachusetts Supreme Court disapproves of prosecutorial rewards to witnesses

By Professor Alexandra Natapoff

Two witnesses in Wayne Miranda's murder trial received $2000 each from the Chamber of Commerce because their testimony assisted in producing a guilty verdict. As the Boston Globe writes, the Massachusettes Supreme Court, while approving such witness reward programs generally, has ruled that prosecutors cannot participate in themor help witnesses get rewards when those rewards are contingent on convictions. Commonwealth v. Wayne Miranda, SJC-10568.

Two witnesses in Wayne Miranda's murder trial received $2000 each from the Chamber of Commerce because their testimony assisted in producing a guilty verdict. As the Boston Globe writes, the Massachusettes Supreme Court, while approving such witness reward programs generally, has ruled that prosecutors cannot participate in themor help witnesses get rewards when those rewards are contingent on convictions. Commonwealth v. Wayne Miranda, SJC-10568.

While the Massachusetts Supreme Court should be lauded for its ethical concern, its decision is somewhat ironic. Prosecutors routinely provide far greater benefits to criminal informant witnesses, in the form of liberty and leniency, than a few thousand dollars. In many jurisdictions, these rewards can be contigent on conviction. And even when the rewards are not expressly contingent on conviction, every attorney and informant knows that a witness in a successful conviction is more likely to get rewarded.

This is why Professor George Harris [author of Testimony for Sale: The Law and Ethics of Snitches and Experts, 28 Pepp. L. Rev. 1 (2000)], and I have recommended leveling the playing field by creating defense informants, i.e. rewards for informants who come forward with information that might help the defense rather than the prosecution. As it currently stands, an offender with information helpful to the defense cannot expect any benefits--only the government can give those. This lopsided arrangement is, as the Massachusetts Supreme Court pointed out, not in the interests of accuracy or justice.

For more postings, please see Prof. Natapoff's Snitching blog at http://www.snitching.org.