Roberts raises some interesting and important points throughout her article. Expanding on Michelle Alexander's discussion in this New York Times Op Ed, Roberts notes that the criminal justice system is ill-equipped for numerous trials. Alexander notes that if numerous defendants were to refuse to accept pleas and insist on taking their cases to trial, prosecutors would be unable to prosecute all of the cases.
I think that the proposal of taking many cases to trial raises some ethical issues -- lawyers must communicate plea deals to their clients, and if the client wishes to take the deal, it would be unethical for the lawyer to refuse and take the case to trial. In many cases, a defendant might want to take a favorable deal, especially if they think that it is unlikely that they will prevail at trial. While a broader goal of crashing the system may appeal to scholars and some attorneys, defendants will probably not care as much about the whole system as they do about their individual cases.
Roberts's suggestions are ultimately less dramatic than the title of her article suggests, and she therefore avoids some of these ethical pitfalls. Roberts advocates a focus by defense attorneys, law school clinics, and pro bono law firm lawyers on particular classes of misdemeanor cases. She also notes that defense attorneys should emphasize that criminal convictions carry a large number of collateral consequences. While these strategies may avoid ethical quandaries, they are hardly the "crash" of the system that the article's title foreshadows.
While it is good for Roberts to point out the consequences of misdemeanor convictions, one particular claim that she makes is so far off base that it overshadows that portion of her paper. Roberts, at one point, writes:
[I]t is one thing to say a person does not need a lawyer to keep him out of jail o a public urination case. It is quite another to say he does not need serious counseling, from his own lawyer, about how, if he is in California, pleading guilty to public urination leads to lifelong sex offender registration.The legal support for this claim is provided in this portion of the footnote following that second sentence:
See Cal. Penal Code § 290(b)-(c) (West 2012) ("Every person described in subdivision (c), for the rest of his or her life while residing in California . . . shall be required to register . . . in accordance with the [Sex Offender Registration] Act. The following persons shall be required to register . . . [persons convicted under] subdivision 1 or 2 of Section 314 . . . "); Cal Penal Code § 314(1) (West 2012) ("Every person who willfully and lewdly, either: Exposes his person, or the private parts thereof, in any public place, or in any place where there are present other persons to be offended or annoyed thereby . . . [is guilty of a misdemeanor].") (alterations in original).This is an instance where the text of the law looks like it might support what Roberts is saying, but where the actual elements of the crime disprove Roberts's point. In the unfortunately named case of In re Smith, the California Supreme Court noted that a conviction under California Penal Code section 314 (indecent exposure) requires more than mere exposure of private parts:
From the foregoing definitions and cases the rule clearly emerges that a person does not expose his private parts ‘lewdly’ within the meaning of section 314 unless his conduct is sexually motivated. Accordingly, a conviction of that offense requires proof beyond a reasonable doubt that the actor not only meant to expose himself, but intended by his conduct to direct public attention to his genitals for purposes of sexual arousal, gratification, or affront. (footnote omitted).For a more recent reiteration of that same rule, see People v. Earle (2009) 172 Cal.App.4th 372, 391-392. These cases make it clear that the "willfully and lewdly" portion of the statute adds a specific intent element to the crime. A person is only guilty of indecent exposure if that person exposes himself or herself and draws attention to his or her exposure for the purpose of sexual arousal, or for the purpose of annoying others.
Most instances of public urination will not involve the specific intent element of the indecent exposure crime. Rather, public urination would be more properly prosecuted under Penal Code section 370, which defines a "public nuisance" (See People v. McDonald (2006) 137 Cal.App.4th 521, 534-539). Absent the specific purposes of sexual arousal or annoying others, public urination is not indecent exposure, and is therefore not a crime requiring sex offender registration. It is therefore misleading for Roberts to insinuate that sex offender registration is an inevitable consequence of a public urination conviction.
While my critique of this one particular point is narrow, I think that it is worth mentioning because these limited, yet blatant, mistakes can cast a disproportionate shadow over an otherwise notable piece. My criticism of Roberts's argument is not limited to this single statement, and I have indicated my broader concerns with her argument at the beginning of this post. But I think that law journal editors must be on the lookout for statements like this. An author's larger argument may invite controversy, but it is the job of editors to ensure that the controversy remains focused on the larger argument, rather than flaws in the details.
Lastly, it is important to point out that Roberts is not alone in making this mistake. A quick Google search reveals numerous sources like Business Insider (via Human Rights Watch) claiming that public urination convictions require sex offender registration in California. These sources also rely on an overly broad reading of Penal Code section 314(1)-(2) (and on similarly incorrect readings of other states' statutes). It is unfortunate to see these sources perpetuating this misleading claim.