“[The misdemeanor system] punishes people because they can’t pay fines and fees. It punishes people because they can’t pay to register their car,” Alexandra Natapoff explained. “It punishes people, often incarcerates them, ... often we incarcerate people, not because of the underlying offense, but just because they couldn’t come up with the money that was supposed to be the low-level punishment.” The visiting professor at Harvard Law School added, “In many ways those fines and fees, that wealth stripping of the poor, is funding the system itself. It’s funding court. It’s finding probation offices. It’s funding public defender offices. It’s funding prosecution offices.”
In her new book, “Punishment without crime: How our massive misdemeanor system traps the innocent and makes America more unequal,” Natapoff exposes misdemeanors as the sprawling base of America’s criminal-justice pyramid. “The reason I call it a pyramid is because the top is small, it’s too small,” Natapoff told me. “As we move down the pyramid, as offenses get pettier, as we move into state court, as we move into the arena where defendants are poor, where public defender offices are overwhelmed, where prosecutor offices are overwhelmed, where the resources are not there to do justice as we know how to do it, then we end up with convictions that do not mean what they say.”
“We should be arresting fewer people,” she told me during the book talk. “Once they are arrested, we should be charging fewer people with misdemeanor crimes.” The discretion given to police, prosecutors and judges is enormous at this level of the criminal-justice system. And the pressure brought to bear on those charged is just as enormous as the gears of justice at the misdemeanor grind much differently.
“We disregard the law in misdemeanor courts all the time. The convictions may have been produced without the assistance of counsel. Prosecutors may not have had time to screen those cases and think about them. People are under enormous pressure to plead guilty,” Natapoff said. “All too often if someone has a conviction, all we conclude is that they were likely to be arrested for all kinds of reasons that may have not had anything to do with the evidence, that they were likely to have been rushed through the process in a speedy way, pressured to plead guilty, and that they were likely to plead guilty, not necessarily because they were guilty, but because they couldn’t make bail or they didn’t have adequate counselor or because they didn’t understand the consequences.”
Listen to the podcast to hear Natapoff talk through the ins-and-outs of the misdemeanor system, from its impact on our history to what should be done to fix it. The echoes and consequences of order maintenance laws in post-slavery America ring clearly today. And if you think getting a misdemeanor is no big deal, you’ll be disabused of that notion by the end of the conversation. The consequences of punishment, both formal and informal, are high.
“Often, that whole net of punishment, that experience, the informal experience of going to jail, losing your job, incurring fines and fees and debt, can be greater than the formal punishment that any judge ever imposes,” Natapoff said. “The fine can be $500, but you may ruin your credit, you may have spent three to five days in jail just waiting for your case to be resolved, you may have lost the custody of your children because of that jail time.
“We should be more discerning, we should be more proportionate, we should be more just in the way that we punish.”