Should Prosecutors Stop Pursuing Minor Crimes?

February 19, 2024

The vast majority of cases winding through our criminal justice system are for misdemeanor offenses—minor crimes such as trespassing, vandalism, and shoplifting. As part of a broader attempt to reform the criminal justice system, some district attorneys’ offices—including those in Suffolk County, Massachusetts, and the borough of Manhattan in New York—have decided to stop prosecuting nonviolent misdemeanors. There’s a growing debate about whether more jurisdictions should take that approach and put their focus on felony offenses such as burglary, kidnapping, and murder. A law school professor and a former prosecutor square off about whether it’s a good idea to stop prosecuting minor crimes.

Misdemeanors include all kinds of minor criminal behavior—everything from loitering to littering. They may seem unimportant, but they’re very influential: 13 million misdemeanor cases are filed each year, representing 80 percent of all U.S. criminal cases. Misdemeanors are how most Americans encounter the criminal justice system, why they go to jail, why they face heavy fines and fees, and how they get a criminal record.

People charged with minor crimes can be incarcerated, lose their jobs, housing, financial aid, or immigration status, and they can suffer the lifelong stigma of having a criminal record. For many poor people, the inability to pay misdemeanor fines often leads to more punishment.

Misdemeanor enforcement also contributes to racial disparities and violence in the criminal justice system. Police arrest Black people nearly four times more often than White people for marijuana possession, even though all racial groups use it at the same rates. Remember that George Floyd was stopped for a misdemeanor before Minneapolis Police Officer Derek Chauvin killed him. Eric Garner in New York and Philando Castile in Minnesota were also stopped for misdemeanors before they were killed by police.

Misdemeanors are how most Americans encounter the criminal justice system.

The misdemeanor system is too big, too expensive, and too destructive; it needs to shrink. Around the country, reform–minded prosecutors have stopped prosecuting minor crimes such as disorderly conduct, loitering, and simple drug possession, and these policies produce many benefits. They save thousands of people from being criminalized, jailed, and punished. They allow prosecutors, public defenders, and courts to focus on more serious cases. And they promote public safety. A study in Boston showed that when prosecutors declined to prosecute low-level misdemeanors and dismissed those cases, public safety increased.

For all these reasons, prosecutors should systematically reduce their prosecution of minor offenses.

—ALEXANDRA NATAPOFF

Professor of Law, Harvard Law School

Aprosecutor’s job is to protect the public and keep communities safe. A modern prosecutor is also a problem solver who must use all available tools to stop criminal behavior. Much like a parent who seeks to steer a child away from destructive actions, society provides guardrails for the safety of its citizens through the prosecution of criminal cases. When prosecutors refuse to prosecute minor offenses, not only does criminal behavior continue but it can escalate to more dangerous, more violent crimes.

The goal of a prosecutor in each case should be to ensure that the victim is protected, the community is safe, and the offender, while held accountable, is put in the best position to not re-offend. Many minor crimes are committed by individuals who have drug problems or mental health issues. The prosecution of these cases provides an avenue to get these offenders the treatment and help they need and provides an off-ramp from criminal behavior. If these crimes remain unchecked, without intervention, then the root causes are not addressed and criminal behavior continues.

Ignoring minor offenses encourages lawless behavior and allows it to escalate.

Ignoring minor offenses encourages lawless behavior. Examples of these misguided policies are evident in cities throughout the United States. The rampant retail theft that’s occurring around the country is an example of how destructive policies can be. Entire stores are moving out of neighborhoods in San Francisco, Chicago, and elsewhere because prosecutors failed in their duty to prosecute minor offenses and protect the public. Ignoring minor crimes and letting offenders avoid consequences is not the answer. It doesn’t help the offenders, and it damages the quality of life for everyone in the areas where these crimes are being committed.

We, as a society, must demand that our prosecutors enforce society’s guardrails and use all the tools they have to stop criminal behavior. That includes prosecuting minor crimes.

—JOHN MILHISER

Former U.S. Attorney, Central District of Illinois

By the Numbers

13 million

APPROXIMATE NUMBER of Americans charged with misdemeanor crimes each year.

^{Source: National Bureau of Economic Research, New York University}

$80.7 billion

ANNUAL COST of prisons and jails as well as parole and probation systems in the U.S.

^{Source: Prison Policy Initiative}

6.5 million

NUMBER of property crimes committed in the U.S. in 2022. This was the most common category of crime. In comparison, there were 1.2 million violent crimes of all kinds committed in 2022.