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Researchers find those prosecuted for non-violent misdemeanors have substantially higher risks of future arrest and prosecution than those who are not

Amanda Agan
Amanda Agan, a Rutgers professor of economics, is a co-author on the working paper.

Defendants prosecuted for non-violent misdemeanors such as motor vehicle, drug and disorder/theft charges have substantially higher risks of future arrest and prosecution than those not charged, according to a new Rutgers University-New Brunswick report. 

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

"Jurisdictions across the U.S. are implementing policies to decriminalize or not prosecute some non-violent misdemeanor crimes,” said co-author Amanda Agan, a Rutgers professor of economics. “These practices often receive push back from law enforcement and the public out of a concern that they could decrease public safety. However, we know contact with the criminal legal system can have significant collateral consequences for people in many domains, including employment, housing and access to public assistance.”

Researchers examined arraignment data of more than 67,000 cases from the Suffolk County District Attorney’s Office from 2004 through September 2020.

Of these non-violent misdemeanor cases, 20.5 percent were not prosecuted past arraignment, with 75 percent of prosecuted cases concluded without criminal convictions and the remaining resulting in a conviction.

Overall, the researchers found that non-violent misdemeanor cases that were not prosecuted were clearly different from non-violent misdemeanor cases that were: non-violent misdemeanor defendants not prosecuted were issued criminal complaints that included fewer counts; were less likely to have been convicted in the previous year; and more likely to be citizens.

Defendants 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 compared to defendants who were prosecuted.

Researchers say the differences in these outcomes could be due to distinctions in the characteristics of those prosecuted for non-violent misdemeanors and those who were not. Using an array of statistical tools, the researchers isolated the effects of the prosecution decision from defendant and case characteristics.

Among the findings:

  • Misdemeanor non-prosecution decreased the number of subsequent criminal complaints issued against defendants within two years by 69 percent relative to comparable prosecuted defendants.
  • Non-prosecution reduced the number of subsequent misdemeanor complaints by 67 percent relative to comparable prosecuted defendants, and the number of subsequent felony complaints by 75 percent relative to comparable prosecuted defendants.
  • Non-prosecution reduced the rate at which non-violent misdemeanor defendants were charged with subsequent violent offenses within two years by 64 percent relative to comparable prosecuted defendants.
  • The beneficial effects of non-prosecution were generally larger for first-time defendants and those without prior criminal complaints, convictions or criminal records in Suffolk County.

The researchers say the outcomes might be explained by 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.

The study’s co-authors included researchers from Texas A&M and New York University.