The urban misdemeanor process relies on a wide variety of informal groupings and aggregations. Order maintenance police arrest large numbers of people based on neighborhood, age, race, and other generalizations. Prosecutors and public defenders resolve entire classes of minor plea bargains based on standard local practices and pricing. Urban courts process hundreds of cases en masse. At each stage, the pressure to aggregate--to treat people and cases by group--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 classic "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 generate no-fault liability regimes with high risks of fraud. The Article concludes that the misdemeanor system as it currently stands does not function as a traditional "criminal" system of judgment in large part because aggregation erodes the substantive content of criminal convictions.
I. The Anti-Aggregation Principle in Criminal Law
A. Theoretical Commitments to Individuation
B. Substantive Individuation in Criminal Law
C. Procedural Individuation
D. Aggregation at Sentencing
E. Permissible Procedural Aggregation
II. Informal Aggregation
III. Informal Aggregation in the Urban Misdemeanor Process
1. Aggregation in Stops
2. Aggregation in Arrests
C. Prosecutorial Screening
D. Defense Counsel: "Meet 'Em and Plead 'Em"
E. Off-the-Rack Plea Bargains
F. Judges and the Mass Court Process
G. The Defendant
IV. The Substantive Effects of Informal Aggregation: Lessons
from the Civil Side
A. The Power of Affirmative Informal Aggregation
B. How Mass Representation Erodes Fault
V. The Oxymoron of Aggregate Criminal Guilt
The concept of criminal guilt is fundamentally individuated. The idea that someone is "guilty"--that he or she "committed a crime"--refers inexorably to that particular individual and his or her actions and intentions. Not all criminal legal concepts are individuated in this way. Sentencing categories, CompStat policing, even inferences about probable cause or reasonable suspicion often rest quite properly on categorical reasoning and generalizations about human behavior. But the ultimate determination of personal guilt is special. It constitutes a unique sort of statement about individual action and culpability, the polar opposite of "guilt by association." Likewise, the consequences of a conviction--punishment, stigma, and other burdens--are justified largely by reference to the notion that a particular criminal offender personally deserves those burdens. In the simplest terms, we are permitted to punish "criminals"--people who have sustained convictions--because getting convicted indicates that a particular person did something that can and should be punished.
Because of the individualized nature of the underlying concept of criminal liability, the basic rules and procedures by which liability is imposed are themselves strongly individuated. They are designed, at least in theory, to ensure that convictions properly attach to the individuals who actually committed particular crimes. …