People need to start paying attention to how low-level criminal cases are handled in the United States, acclaimed legal scholar Alexandra Natapoff says.
Her new book, “Punishment Without Crime: How our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal,” is the first to examine the massive scale of low-level criminal charges and how they’re often leveraged to yield hasty pleas absent of due process.
Every year, millions of Americans are charged with misdemeanors, making up 80 percent of the nation’s crime dockets. All these cases culminate in a fragmented and overburdened system rife with sloppy legal work and lasting consequences for people swept up in it. It’s a system that punishes people for being poor and further exacerbates racial disparities, Natapoff argues.
It’s a system so broken, evidence suggests thousands of people are likely pleading guilty when they are innocent, simply because it seems like the only rational option when they’re sitting in a jail cell, unable to pay bail.
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In rare instances where errors have resulted in a re-examination of closed misdemeanor cases, as Natapoff outlines in her book, it’s been discovered that many innocent people in those cases pleaded guilty just so they could get out of jail or avoid facing a maximum sentence.
Natapoff will be at Powell’s City of Books on West Burnside Street at 7:30 p.m. Feb. 25 for a book signing and discussion of “Punishment Without Crime.”
Natapoff, who graduated cum laude from both Stanford Law School and Yale University, said it was through her experiences in the late 1990s working with community organizations in Baltimore that taught her the criminal system is “central to issues of fairness and equity and justice.”
She then worked as a federal public defender in Baltimore before beginning what has now been a 15-year academic career, coming to University of California Irvine from Loyola Law School, Los Angeles nearly two years ago. She is also the author of “Snitching: Criminal Informants and the Erosion of American Justice.”
Natapoff recently spoke with Street Roots from her home in Irvine, Calif., about America’s broken misdemeanor system and how to fix it.
Emily Green: I want to begin with a quote from your book. You write, “While mass incarceration has become recognized as a multibillion-dollar dehumanizing debacle, it turns out the misdemeanor behemoth does quieter damage on an even grander scale.” What can you tell us about the scale of low-level cases in our country?
Alexandra Natapoff: Approximately 13 million misdemeanor cases are filed in this country every year, and that number is probably an underestimate.
It doesn’t include traffic cases, for example, in the 25 states that make speeding a misdemeanor, but it’s an enormous net that sweeps in millions of people every year based on minor, low-level conduct that is often not harmful or dangerous.
In researching data for this book, I gathered as much information as I could about the various misdemeanor systems in states around the country. There’s an enormous divergence among states and how they keep track of the misdemeanor cases and systems, so it’s an issue that has been under appreciated, under studied, and it’s time we paid closer attention to it.
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E.G.: This staggering volume has caused problems in the way these cases are processed through the court system. What do you think surprises people most when you tell them about how this process actually plays out in courtrooms across America?
Natapoff: I think people are surprised when they learn how we run approximately 80 percent of our criminal system. People are surprised at how many cases there are, how many people end up in contact with the misdemeanor system. It’s a very common experience for people in this country.
People are surprised at how easily law gets ignored in many of these courts. Perhaps the most infamous example is how often people who are entitled to defense counsel don’t actually get defense counsel.
People are surprised at the broad scale of conduct that can be criminalized through the misdemeanor system – everything from loitering to trespassing to spitting and jaywalking.
Of course there are more serious misdemeanors, things that we might think of as more conventionally criminal – DUII, domestic violence – but there is a vast amount of conduct in the misdemeanor system that people are surprised that we even make a crime.
E.G.: When I was on another assignment recently, I was looking through early-20th-century arrest records in the Portland City Archives, and it was interesting to see page after page of people booked into jail on the charge of vagrancy, which as you know was this catch-all charge that could be applied to just about anyone a police officer wanted to arrest. It’s easy to see why vagrancy laws were deemed unconstitutional. But you argue these laws never really went away; they were just replaced with misdemeanors that are commonly used today. Can you explain what some of these misdemeanors are and how they can be used to entrap anybody in the criminal justice system?
Natapoff: There are a lot of things about our misdemeanor system that have changed over the decades and centuries, and some things remain startlingly similar. In 1972, the Supreme Court declared vagrancy laws unconstitutional. Vagrancy was a crime that made it an offense to lack a job, to be out of place, to be unable to account for yourself, to do any number of a range of things that a police officer might find objectionable. The Supreme Court held that crime gave too much discretion to police officers, that it didn’t put people on notice of what criminal behavior really was, and that it violated the constitution.
When the vagrancy laws were struck down, a number of other laws arose to take their place, not completely and not in exactly the same way.
The order maintenance offenses that we currently grapple with (also known as quality-of-life crimes, such as loitering, disorderly conduct and littering) are not identical to vagrancy. They are more specific, but they sometimes do the same work. They end up sweeping in poor people, people of color, in neighborhoods that are heavily policed.
One of the things we need to keep an eye on is to make sure these more modern crimes are better-defined crimes that don’t violate the vagueness requirements of the constitution.
E.G.: A lot of these crimes carry somewhat light sentences or fines, but you argue that our system over-punishes people. Can you explain how these charges can end up impacting people longer-term than might be expected?
Natapoff: I think we’ve become a little bit numb to the punitive aspects of misdemeanors because we’ve been confronting the harshness of mass incarceration for so long.
When you’re worried about mass incarceration and 30-year sentences and solitary confinement, yes, misdemeanor punishments look lenient by comparison, but for the people that experience those punishments, they are not lenient at all.
The most common punishments for misdemeanors are probation and a fine, but probation can be burdensome, intrusive and frightening, and a very expensive proposition.
Any violation of probation can threaten a person with incarceration, so incarceration is always kind of lurking in the background.
With respect to fines and fees, I think we’ve become far more attuned to the threat they pose to the poor and to the integrity of our criminal system.
There are some kinds of offenses that only apply to the poor – failure to pay a fine, failure to pay a traffic ticket or failure to pay a car registration, thereby leading to a suspended license. This is an offense that is largely committed by people who can’t afford to pay those fines in the first place while wealthy people have the means to make sure their registration and traffic tickets are paid.
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I began the book with the story of Gail Atwater. She was a mother of two in Largo Vista, Texas. She was driving around the park very slowly with her kids, looking for a toy that her son Mac, who was 3 years old at the time, had dropped. She was pulled over by a police officer who told her she would be arrested for failing to have her children in seatbelts while they were looking out the windows of the car.
Gail Atwater was arrested, taken to jail, put in a jail cell, booked, fingerprinted, mug shot – all for a seatbelt violation for which she could not have been punished with incarceration.
The maximum punishment for the seatbelt violation was a $50 fine, which she paid. She asked the Supreme Court to rule that her treatment at the hands of the police was unreasonable, that people should not be able to be taken to jail and incarcerated for a crime for which they could not in fact be incarcerated. The Supreme Court ruled against her. They said that police officers can arrest individuals, take them to jail, book them, keep them in jail for days, even if, as a matter of punishment, those individuals could not be punished with incarceration. And so it bears remembering that the misdemeanor net begins, in many ways, with arrests, with stops and frisks leading to arrests, with the understanding that we might be arrested, and that the Supreme Court has broadened the net by holding that people like Gail Atwater can be sent to jail even if they couldn’t be punished with jail for the crime. The impact of a misdemeanor encounter goes all the way back to the very beginning.
E.G.: Considering how serious some of the consequences can be, I think one of the things I found most unsettling in your book was that there might be a lot of people walking around with a conviction for a low-level crime that they didn’t even commit. What do we know and not know about the prevalence of wrongful convictions in misdemeanor cases?
Natapoff: You’re right that the long-term consequences are often far greater than people realize. That criminal conviction will haunt you forever.
It will interfere with jobs and housing and public benefits. It can prevent you from getting licenses or housing. Even if a person never goes to jail for the misdemeanor, they can still be punished for a very long time. And all too often, those convictions and those consequences are imposed on people who are innocent.
The innocence movement has been a very important force in American criminal justice reform and reveals to us just how often we impose serious convictions for the most serious offenses, including rape and murder, on people who are innocent, but we haven’t paid enough attention to the risk that individuals are pleading guilty to minor offenses that they never committed.
Often people plead guilty to a minor offense because they are incarcerated and can’t make bail. They can’t afford to pay the $500 or $1,000 that is required for them to be released, and in the moment, it seems rational to plead guilty just so that they can go home, whether or not they committed that crime.
Because the misdemeanor system is so enormous, and because we don’t scrutinize those cases very well, often the processes by which those pleas are taken and the convictions are entered are quick and dirty. We often don’t check to see if people are actually innocent or if the evidence is any good, whether their conduct met the legal standards required for loitering or trespassing. So it’s very likely that thousands, maybe even hundreds of thousands, of wrongful misdemeanor convictions are entered every year.
FURTHER READING: Oregon Innocence Project’s Aliza Kaplan: Criminal injustice ‘every single day’
E.G.: You argue we should remove some misdemeanors from the criminal justice system, making them more like a traffic ticket than a crime, and we should get rid of some misdemeanors altogether. What would you say to someone who argues this sort of change to our system would lead to lawlessness in the streets and threats to public safety?
Natapoff: A lot of the problems generated by the misdemeanor system are because of its scale and redundancy. There are many tools to go after harmful or dangerous conduct. Disorderly conduct, loitering, trespassing – these are tools we give police to maintain order, to prevent violence, but, because the misdemeanor system is under-regulated and under-scrutinized, these offenses are overused.
State after state has decided, notwithstanding decades of heavy criminalization in that arena, that marijuana possession shouldn’t be a crime at all. They’re legalizing the possession of marijuana. Other states are decriminalizing marijuana, meaning that the conduct is still forbidden, but it’s not criminal; it results in a citation and a fine.
Traffic codes are a wonderful opportunity for decriminalization. Even if individuals don’t go to jail immediately for a traffic ticket for speeding or driving on a suspended license, the threat of incarceration is always hovering, so it’s an opportunity that some states have taken advantage of to get those offenses out of the criminal system and to lessen the burden on the criminal justice apparatus so that they can attend to more serious offenses.
E.G.: In Portland, public defenders start out at about $58,000 a year and they top out at $85,000 a year. Meanwhile, prosecutors start out at about $83,000 a year and can make as much as $180,000, and that doesn’t count the top managerial positions. Additionally, defense firms have expenses that prosecutors don’t, such as malpractice insurance and paying for investigators. It’s expected that a bill will be introduced in Oregon this legislative session that would seek to close that gap in pay. If it passes, what sort of impact would you expect to see in our criminal justice system here in Oregon?
Natapoff: It’s important to remember that we have an adversarial system, and relying on the adversarial system to maintain fairness, the two sides of the equation should be equally resourced.
One of the challenges in the misdemeanor system, for prosecutor offices as well as public defender offices, is they are overburdened. The large number of arrests that come into the system are challenging for all players in the criminal system to manage and process fairly and rigorously. It’s even a challenge for judges who man very large misdemeanor dockets. Putting resources into the misdemeanor system to equalize salaries between defenders and prosecutors, but also to provide comparable resources to the defense side, like investigative and expert resources so that both sides can litigate properly, would raise the standard of advocacy for fairness and accuracy for everyone.
E.G.: According to the data that you were able to collect, Oregon has the second-lowest rate of misdemeanor cases in the nation. From a bird’s-eye view, we’re looking pretty good. But the reality is, here in Portland, our jail is full of people who are sitting there because they can’t afford bail and who got there because they are homeless, have a substance use disorder or a mental illness. And, people of color, especially African-Americans, are vastly overrepresented in our local criminal justice system. If on the surface we’re doing better than a lot of other states already, what does that say about how much we have to change as a nation in order to get this right?
Natapoff: Statistics only tell you so much. Relatively low filing rates for misdemeanors doesn’t necessarily tell you whether the misdemeanor system is running in a fair and just and equitable way.
From a national perspective, the most important way to address our misdemeanor system is to check its scale, to scale it back, to understand that this is a massive, destructive, punitive public policy that we overuse in all kinds of spaces and that, both at the national level and even more importantly at the local level, we need to grapple with the social and human costs of using the state apparatus in this way.
E.G.: I’m going to pose a question to you that you pose in your book, and that is: What is the right way to run a low-level criminal system in a democracy? And I especially want to ask that in regard to very-low-income defendants. Transitioning a crime into a fine still might cause a lot of problems for that particular group of people.
Natapoff: Criminal justice enforcement always poses this question, in a democracy. How much power do we want to give the state to punish people, to incarcerate them, to take their liberty, to take their money? Conversely, how much do we want the state to be intervening in communities, in neighborhoods, in workplaces to protect people’s safety, to vindicate the needs of a victim or people who may feel threatened?
It’s one of the great challenges of a democracy, and there is no magic answer or perfect balance. I think the challenge of misdemeanors is we have paid so little attention to it that it hasn’t gone through the democratic crucible of debate.
We’re only just starting to have that debate with respect to mass incarceration, and we haven’t had it with respect to misdemeanors.
We are just starting to grapple with the cost of misdemeanor enforcement, but we also have to remember that nobody wants to live in a neighborhood in which their cars are broken into or their houses are broken into. Crime is a real factor for people in their daily lives. We need a misdemeanor system that is both responsive to the demands of community and also respectful and fair to the individuals it encounters.
E.G.: How do we get there?
Natapoff: I think what’s exciting about misdemeanors and the misdemeanor debate is that the questions are so local. Individuals and neighborhoods can start to address those questions in their own communities immediately. We don’t need to wait for Congress. We don’t need to wait for the Supreme Court to issue an edict about how this should happen.
As we’ve seen all around the country, people are starting to elect a different kind of prosecutor.
We just saw in Boston a few months ago the election of the first African-American woman to lead the District Attorney’s office, Rachel Rollins, who ran on a platform that promised, among other things, to decline to prosecute a list of 15 different misdemeanors – that the default position of her office would be, when people are arrested for crimes like disorderly conduct or loitering or trespassing, unless there was some special reason, those arrests would not translate into formal criminal cases.
District Attorney Larry Krasner in Philadelphia has also promised to decline more cases. We’re seeing around the country an understanding that prosecutors, who are responsive to their local communities, can change the way the misdemeanor system functions.
There are many opportunities through the electoral process, through engagement through municipal and county and state governments, that ordinary people can make their voices heard.
IF YOU GO
WHAT: Alexandra Natapoff book signing and discussion of “Punishment without Crime”
WHERE: Powell’s City of Books, 1005 W Burnside St., Portland
WHEN: 7:30 p.m. Monday, Feb. 25, 2019
Email Senior Staff Reporter Emily Green at emily@streetroots.org. Follow her on Twitter @greenwrites.
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