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Disorderly conduct is usually a misdemeanor statute that criminalizes a broad range of behavior. Law professors have recently called for the abolition of such statutes, arguing that the police are surveilling African American neighborhoods “for signs of disorder” and using the statute “as a means of social control against people of color.”This Article investigates this claim of racist policing by examining a sample of disorderly conduct cases. The sample confirms that African Americans are indeed charged at a disproportionately high rate relative to their percentage of the population. However, the disproportionate charging is not due to racist police surveillance. Rather, in all cases, the police were summoned to the scene—usually for allegations of domestic violence. Not a single disorderly conduct case against an African American defendant was the result of police surveillance.This Article’s investigation has its limitations: most significantly, it studies a sample of cases drawn from a single venue and jurisdiction. But from a policy-making perspective, that is also the important lesson. Police practices are localized and vary greatly by state, county, and even agency. Consequently, such sweeping and dramatic allegations of racism, while trendy in academia, may often be wrong. And when they are wrong, the true, underlying problem goes undetected.This Article further reveals that, in the sample of cases studied, the disorderly conduct statute is being abused not by police, but in a race-neutral way by prosecutors. Regardless of the defendant’s race, prosecutors habitually stack a disorderly conduct charge onto the underlying charge—usually a domestic battery—thus giving the state unfair leverage in plea bargaining. With the true problem correctly identified, this Article recommends simple, statutory reform that would curtail prosecutorial charge-stacking while preserving the disorderly conduct statute for its legitimate uses.
Disorderly Conduct: An Investigation into Police and Prosecutor Practices,
Lincoln Mem’l U. L. Rev.
Available at: https://digitalcommons.lmunet.edu/lmulrev/vol9/iss1/8