New York University: Prosecuting Nonviolent Misdemeanors Increases Rearrest Rates, New Study Shows

New Working Paper Finds Those Prosecuted for Nonviolent Misdemeanors Have Substantially Higher Risks of Future Arrest and Prosecution than Those Who Are Not

Defendants prosecuted for nonviolent misdemeanors have substantially higher risks of future arrest and prosecution than those not prosecuted, finds a newly released analysis of cases from a Massachusetts county district attorney’s office.

The findings, reported in a National Bureau of Economic Research (NBER) working paper, suggest that aggressively prosecuting low-level crimes could actually lead to more crime.

“Law enforcement has historically pursued punitive policies directed at these ‘quality of life’ offenses in the belief that those policies enhance public safety,” explains New York University Professor Anna Harvey, director of NYU’s Public Safety Lab and a coauthor on the paper. “But we’re now starting to learn that such policies don’t always produce more public safety. This study indicates they may make us less safe.”

Harvey and her colleagues, who included Rutgers University’s Amanda Agan and Texas A & M’s Jennifer Doleac, examined nonviolent misdemeanor cases in the District Attorney’s Office of Suffolk County (Mass.), which encompasses Boston and surrounding areas.

They found that defendants prosecuted for nonviolent misdemeanors had significantly higher risks of subsequent arrest and prosecution than those not prosecuted. These later arrests included arrests for violent and felony offenses.

“Surprisingly, prosecuting these nonviolent misdemeanor cases actually increased the likelihood of a later arrest, including later arrests for violent and felony offenses,” Harvey observes.

Misdemeanor cases make up more than 80 percent of the cases processed by the U.S. criminal justice system, with more than 13 million Americans charged with such offenses each year. However, little is known about the impacts of misdemeanor prosecution.

With the aim of better understanding some of its effects, the researchers examined arraignment data (more than 67,000 cases) from the Suffolk County District Attorney Rachael Rollins’ Office from 2004 through September 2020.

Of these nonviolent misdemeanor cases, 20.5 percent were not prosecuted past arraignment; three-quarters of prosecuted cases concluded without criminal convictions and the remaining resulting in a conviction.

Overall, the researchers found that nonviolent misdemeanor cases that were not prosecuted were clearly different from nonviolent misdemeanor cases that were. Nonviolent misdemeanor defendants who were not prosecuted were issued criminal complaints that included fewer counts, fewer misdemeanor counts, and fewer “serious” misdemeanor counts (i.e., punishable by greater than 100 days incarceration). They were less likely to have had a misdemeanor or felony conviction within one year prior to the arraignment hearing in their case. They were also more likely to be citizens.

Moreover, defendants who were not prosecuted were significantly less likely to receive a new criminal complaint, to be prosecuted, and to receive a new criminal record within two years post-arraignment, relative to defendants who were prosecuted.

However, the researchers note, the differences in these outcomes could be due to distinctions in the characteristics of those prosecuted for nonviolent misdemeanors and those who were not.

Using an array of statistical tools, including those adopted for previous studies in the field, the team was able to isolate the effects of the prosecution decision from the effects of defendant and case characteristics. Their results showed the following:

Misdemeanor nonprosecution decreased the number of subsequent criminal complaints issued against defendants within two years by 69 percent, relative to comparable prosecuted defendants.
Nonprosecution reduced the number of subsequent misdemeanor complaints by 67 percent, relative to comparable prosecuted defendants, and reduced the number of subsequent felony complaints by 75 percent, relative to comparable prosecuted defendants.
Nonprosecution reduced the rate at which nonviolent misdemeanor defendants were charged with subsequent violent offenses within two years by 64 percent, relative to comparable prosecuted defendants.
The beneficial effects of nonprosecution were generally larger for first-time defendants, those without prior criminal complaints, convictions, or criminal records in Suffolk County.
While the researchers did not examine what might explain these surprising outcomes, they cited some possibilities, including the negative consequences of disruptions to defendants’ work lives during lengthy misdemeanor prosecutions (averaging six months in their data) and the potentially damaging effects of criminal records of arrest and possibly conviction on defendants’ employment prospects. Previous scholarship has shown that defendants with criminal convictions have worse labor market outcomes, and increased likelihoods of subsequent re-arrest, relative to defendants without convictions.