America's Massive Misdemeanor System Deepens InequalityJanuary 09, 2019

A new book by former federal public defender and legal scholar Alexandra Natapoff examines an aspect of American criminal justice that she argues is often overlooked: misdemeanors.

Misdemeanors — minor, law-level criminal offenses punishable by no more than one year in jail or prison — account for about 80 percent of American criminal dockets, Ms. Natapoff told Teri Gross on Fresh Air. While there is no definitive national data on the number or type of misdemeanor cases, Ms. Natapoff estimates that misdemeanors comprise approximately 80 percent of all arrests and 80 percent of state dockets, based on arrest data from the FBI and other statistical reports.

With 13 million misdemeanor cases filed every year, public defenders, prosecutors, and judges face crushing case loads. Public defenders lack resources to investigate cases and face pressure from prosecutors and judges not to file motions or litigate constitutional issues, which Ms. Natapoff argues in "Punishment Without Crime" undermines the reliability of convictions and traps the innocent.

All but a handful of misdemeanor cases are resolved by plea deals, and recent studies have found that racial disparities in plea agreements were even greater in misdemeanor cases than in felony cases. White people facing misdemeanor charges were nearly 75 percent more likely than black people to have all charges carrying potential imprisonment dropped, dismissed, or reduced to lesser charges.

The system also disproportionately punishes the poor, Ms. Natapoff found.

One of the particularly burdensome and inequalitarian aspects of low-level offenses is the effect of imposing fines and fees on misdemeanor defendants.

Fines, court fees, bail, and other monetary penalties can result in crushing debt. People are put on probation or other court supervision, and even incarcerated, because they are too poor to pay fees, which can be charged for everything from supervision and drug testing to DNA collection. Bond schedules for misdemeanors can require those too poor to pay to wait days in jail before seeing a judge. People who are too poor to hire a lawyer must pay a fee to apply for a public defender and people who are incarcerated because they could not pay their fines and fees are charged jail fees.

"Misdemeanors are moneymakers for local jurisdictions," Ms. Natapoff said. Because they fund courts, probation offices, public defender and prosecutor offices, and even the general budget in some jurisdictions, she argues that misdemeanors function as a regressive tax policy that shifts costs for basic services to the poorest citizens.

In addition to crushing fines and fees and incarceration, people convicted of misdemeanors face serious collateral consequences, including loss of employment and housing, threatened immigration status, and disqualification from welfare benefits, student loans, and a range of licenses and jobs.

The book observes that jurisdictions across the country are implementing reforms to reign in the misdemeanor system. Ms. Natapoff said that successful strategies include decriminalization, reduced arrests, reduced use of bail, and increased exercise of prosecutorial discretion to decline to prosecute low-level cases in which an arrest itself is enough of a punishment.