Most of us have minimal understanding of the criminal justice system but think that felonies are serious, and misdemeanors are not. Alexandra Natapoff would beg to differ. The Lee S. Kreindler Professor of Law at Harvard Law School published a book in 2018 about how the misdemeanor system punishes the poor and people of color, exposing the inner workings of an often-overlooked aspect of the criminal justice system. Now the work, “Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal,” has inspired a new documentary, “Racially Charged: America’s Misdemeanor Problem.” The film will have its premiere with a live stream event, which includes a panel discussion, on YouTube on Thursday from 3:30 to 5 p.m. The Gazette interviewed Natapoff about her book, the film, why she thinks that the misdemeanor system has become “the first step in the ethos of mass incarceration,” and how it could be changed.
GAZETTE: What is a misdemeanor?
NATAPOFF: There is a legal answer and a structural answer. The legal system typically defines a misdemeanor as an offense for which a person can be incarcerated for no more than one year. One year is typically the legal line drawn between a misdemeanor and a felony. But more fundamentally, misdemeanors refer to a vast array of low-level offenses that are treated as minor, petty, or not serious. Many misdemeanors carry a maximum sentence of six months, three months, one month. While the typical upfront punishment is more often a fine and probation than a formal jail sentence, there is an enormous amount of incarceration in the misdemeanor system. Democratically speaking, misdemeanors represent an enormous arena of low-level conduct engaged in by millions and millions of people, often not particularly harmful, not particularly dangerous, not particularly culpable, that we permit the state to criminalize and treat as a criminal offense. Basically, misdemeanors open the door to a vast amount of punishment, incarceration, and state intrusion into people’s lives for very low-level common minor conduct.
GAZETTE: We know that misdemeanors are minor offenses, but your book shows there is nothing minor about them. Can you explain how they can inflict so much harm in people’s lives?
NATAPOFF: Even although we treat misdemeanors as minor or petty, there is nothing minor about the consequences of sustaining a misdemeanor conviction. People can lose their license to drive; they can lose their license to be part of a profession; they may be incarcerated; they may be saddled with thousands of dollars of debt that they can’t pay off, which can ruin their credit. They can be deprived of government benefits, public housing, financial aid for educational institutions. They may lose their immigration status. They can lose child custody. There are so many ways that the misdemeanor system can burden a person for their entire life in a way that is belied by the term “petty offense.”
GAZETTE: Can you take us through the process of misdemeanors from arrest through prosecution and punishment? Where does it start and where does it end?
NATAPOFF: Misdemeanor cases formally work the same as many other criminal cases. It starts when police arrest someone. And there’s no way to overstate the importance of police discretion in the misdemeanor system. It is police officers who decide who, of the millions and millions of people who commit misdemeanors every year, will actually be treated as a criminals for jaywalking, driving on a suspended license, spitting, littering, trespassing, or loitering. And the standard for an arrest under U.S. law is very low. We only require police to have what we call “probable cause” that a crime has been committed, which is a relatively small amount of evidence. Once a person has been arrested, they have an arrest record, and that record can follow them for a lifetime. It can haunt a person in their employment, housing, and other arenas of their lives.
Sometimes people are released after an arrest. Many people, however, go to court and are set bail, which is an amount of money they need to pay in order to get out of jail while their cases are being resolved. And because many people can’t afford bail, they may be sent to jail for weeks or months. We have started to appreciate, in the last few years, just how many people are incarcerated for long periods of time not because they’re guilty, but because they can’t afford bail. We sometimes call this the new “debtors’ prison.” In other words, we’re locking people up not because they’re dangerous or guilty, but because they’re poor. Often people who cannot afford bail will plead guilty just to get out of jail. Millions of people plead guilty to misdemeanors like this. We will never know whether they were actually guilty of anything because they are pleading essentially to go home, to take care of their children, to avoid eviction, or so as not to lose their jobs.