The urban misdemeanor process employs a wide variety of informal aggregations. Order maintenance police arrest large numbers of people based on neighborhood and group generalizations. Prosecutors and public defenders negotiate entire classes of minor plea bargains quickly and generically, and the vast majority of defendants plead guilty without scrutiny of their cases. Urban courts process hundreds of cases en masse. At each stage, the pressure to aggregate weakens and sometimes eliminates individuated scrutiny of defendants and the evidence in their cases; people are largely evaluated, convicted, and punished by category and based on institutional habit. This wholesale process of creating criminal convictions in the aggregate is in deep tension with core precepts of criminal law, most fundamentally the idea that criminal guilt is an individuated concept reflecting the defendant’s personal culpability.
This Article traces the influence of different sorts of aggregation through each step of the urban misdemeanor process, demonstrating how that process has effectively abandoned the individuated model of guilt and lost many of the essential characteristics of a “criminal” system of legal judgment. It then explores civil scholarship’s insights into the substantive power that informal aggregations can exert over liability rules and outcomes, in particular how mass settlement scenarios can effectively create no fault liability regimes with high risks of fraud. The Article concludes that the misdemeanor system as it currently stands should be reconceptualized as not entirely criminal in nature.