Editor’s note: Alexandra Natapoff is a professor of law and associate dean at Loyola Law School, Los Angeles. She’s the author of the 2012 study “Misdemeanors,” published in the Southern California Law Review.
At their inaugural debate, the Democratic presidential candidates finally agreed that black lives matter. If they mean it, they should take a stand against a common but overlooked way that our criminal system devalues black lives: convicting African American men of minor crimes that they did not commit.
These wrongful convictions are largely byproducts of “order maintenance” or “quality-of-life” policing, in which police arrest large numbers of young black men on baseless charges. Baltimore police, for example, are under court-ordered monitoring for making baseless quality-of-life arrests. As described by one former officer, police tell young men to move along, then arrest them for loitering when they don’t. Maryland courts have already explained that this police practice is illegal: people who are merely standing on the street, even those ordered to move along, are not actually “loitering,” which the city ordinance defines as “to interfere with, impede or hinder the free passage of pedestrian or vehicular traffic” after having been warned to desist.
But police in many cities use loitering-type arrests for all sorts of purposes — to clear a street corner, to send a message to gangs or drug dealers, or to assert their own authority. Once charged, the misdemeanor process then exerts enormous pressure on individuals to plead guilty, especially if they are stuck in jail because they cannot make bail. As a result, many of them end up convicted of crimes they never committed, such as loitering, trespassing, disorderly conduct, or resisting arrest. It can happen to anyone, but because we overpolice young black men in low-income neighborhoods for precisely these types of minor crimes, it’s more likely to happen to them.
Similarly, New York police had a 20-year policy of arresting people on the premises of public housing projects even when they had the legal right to be there. The vast majority of those charged with trespassing pled guilty — the easiest way to get out of jail. The policy was so egregious that the Bronx District Attorney’s Office announced in 2012 that it would no longer file trespassing cases based solely on police reports, and in 2013 the policy was found unconstitutional. But thousands of individuals had already been convicted, many of them wrongfully.
Earlier this year, the U.S. Department of Justice concluded that police in Ferguson, Missouri, illegally arrest numerous residents for the vague offense entitled “Failure to Comply.” As the DOJ explained,
Officers frequently arrest individuals under Section 29-16(1) on facts that do not meet the provision’s elements. Section 29-16(1) makes it unlawful to “[f]ail to comply with the lawful order or request of a police officer in the discharge of the officer’s official duties where such failure interfered with, obstructed or hindered the officer in the performance of such duties.” Many cases initiated under this provision begin with an officer ordering an individual to stop despite lacking objective indicia that the individual is engaged in wrongdoing. The order to stop is not a “lawful order” under those circumstances because the officer lacks reasonable suspicion that criminal activity is afoot.  Nonetheless, when individuals do not stop in those situations, FPD officers treat that conduct as a failure to comply with a lawful order, and make arrests.”
Once arrested, innocent residents can languish in a jail so filthy and dangerous that one lawsuit described it as “Dickensian.” They may also face extortionate bail prices. Most people plead guilty. (The DOJ described trials in Ferguson as “rare.”) The problem is pervasive across St. Louis County.
We know such details about Baltimore, New York, and St. Louis County because of high-profile lawsuits and investigations. But quality-of-life policing occurs all over the country, and the misdemeanor process exerts the same pressures to plead on millions of defendants. In other words, this type of wrongful conviction is likely occurring every day out of public sight.
Such wrongful convictions represent the convergence of two of our criminal system’s worst flaws: its racial skew and its rush to convict. Think of it as Black Lives Matter meets the innocence movement. Our criminal system is widely criticized for targeting and overpunishing African Americans and communities of color. But that longstanding criticism has generally focused less on whether minority defendants are actually guilty, and more on the disproportionate targeting and racism built into the system. Conversely, the innocence movement has shaken the criminal justice world by uncovering hundreds of wrongful convictions in very serious cases like rape or murder. But it has not zeroed in on the much larger pool of innocent defendants coerced into pleading guilty to minor crimes every year.
Why do these wrongful convictions remain invisible? One reason may be the common belief that a petty conviction is no big deal. But minor convictions have major consequences. A misdemeanor conviction can deprive a person of a driver’s license, public housing, student loans, or legal immigration status. Even an arrest record can interfere with job prospects, and most employers say they check criminal records before hiring. True, the typical formal punishment for a misdemeanor is probation or a fine, not incarceration. But many offenders end up in jail anyway for failure to pay fines they cannot afford. In short, the misdemeanor process is probably burdening thousands of innocent African-Americans not only with the stigma and indignity of a wrongful conviction, but a crushing array of collateral consequences.
The structural problem lies with the misdemeanor system itself, the front-line mechanism through which we disproportionately sweep African-Americans up into the criminal system and label them, often inaccurately, as criminals. If we made the effort to expose these wrongful minor convictions, we might also accomplish something even more fundamental: disrupting the mythological link between blackness and criminality. That insidious myth, which dates back to slavery and still infects many aspects of American culture and governance, won’t be eliminated overnight. But we — and our presidential candidates — can take a step in the right direction by recognizing that many of the young black men we convict of minor crimes and then treat as criminals for the rest of their lives are actually innocent.