GAZETTE:  This is why your book describes the misdemeanor system as a system that traps the innocent.

NATAPOFF:  The majority of misdemeanor convictions are the result of a guilty plea, not of a trial. This is also true for felonies. Cases in the U.S. almost never go to trial. We almost never litigate whether someone is factually guilty. In terms of the process, a substantial percentage of misdemeanor cases will eventually be dismissed. A prosecutor will review the file and may decide that the case can be dismissed, perhaps after a period of diversion or supervision. This isn’t as lenient as it sounds — the individual may already have lost their job, lost their housing, or suffered the burdens of having been incarcerated. But in the majority of misdemeanor cases, a defendant will have to decide whether to contest their guilt and go to trial, which almost no one does. More often they plead guilty.

One of the great challenges of the misdemeanor system is that even when people are entitled to a lawyer, often the state does not give them one. Misdemeanor defendants, like all criminal defendants in the United States, have constitutional rights to counsel. But we know that courts all around the country are still not giving them lawyers. So often these defendants are deciding what to do about their cases without the benefit of talking to a lawyer. The consequences are enormous. Once a person pleads guilty, they have a criminal record, maybe for loitering or driving on a suspended license, and that misdemeanor conviction can interfere with people’s lives in numerous ways. For example, the majority of employers tell us that they look at criminal records, even misdemeanors, in making decisions about whether to hire people.

GAZETTE:  You worked as a public defender in Baltimore. How did this experience inform your book?

NATAPOFF:  I learned about the importance of misdemeanors from being a public defender in Baltimore. It’s hard to tell from outside the criminal system just how influential and important these cases can be. I learned in representing my clients, both clients charged with federal misdemeanors and clients charged with more serious federal offenses, that many of them had had numerous experiences with the criminal system through misdemeanors. And those misdemeanors burdened their lives, their ability to thrive economically and personally. It also burdened them in the eyes of the criminal system, which treated them much more harshly because they had these prior misdemeanor records. I saw how profoundly they were suffering from the burden of these low-level offenses that I came to appreciate just how powerful the misdemeanor apparatus really is.

GAZETTE:  Why did you want to write this book?

NATAPOFF:  In my experience, so much of the impact, influence, and often injustice of the criminal system takes place in the least-regulated spaces, in the spaces that we write off as unimportant or minor. As a public defender in Baltimore, I learned that misdemeanors were not minor at all. And when I was fortunate enough to become a legal scholar, I had to think where I wanted to direct people’s attention, and I chose to write about this enormous phenomenon of over-criminalization, of racial injustice and economic injustice, in the vast majority of cases that our criminal system processes. The opportunity to write the book, for me, was in many ways, the opportunity to shed light on how most of our criminal system actually works. To me, this is not a book only about misdemeanors. This is a book about the American criminal system seen from the bottom up.

GAZETTE:  You said in your book that misdemeanors make up 80 percent of the criminal cases in the U.S., and that every year 13 million Americans are charged with misdemeanors. What are the factors driving those huge numbers?

NATAPOFF:  We don’t know exactly why the misdemeanor system is so big, although we know many of the reasons. It is enormous for the same reason that our criminal system is enormous, because the United States relies more heavily than any other country on criminalization as a form of governance. We turn to the criminal system to control our public spaces, to police the poor, to manage schools and public housing in ways that criminalize the people who live and learn and work there. We’ve learned this fact from the conversation around mass incarceration, and it is true for misdemeanors as well. Maybe even more so. In some ways, misdemeanors have their own special egregiousness because they have been written off as minor and unimportant, and therefore the barriers to criminalization are low. The system treats it as no big deal to arrest and convict someone for a misdemeanor, even though it is an enormous burden on their lives and the lives of their families. The American misdemeanor system is big because we overuse the criminal system in general, but also because we have been sloppy in our evaluation of the true costs of using misdemeanor criminalization in this way.

GAZETTE:  What role does the misdemeanor system play in mass incarceration? How does it create and reinforce racial and economic inequalities?

NATAPOFF:  I think of misdemeanors as the first step in the ethos of mass incarceration. It’s the first place that we overuse the criminal system. It’s the first place we turn to punishment and to the police in order to address social issues. It’s the first place where we over-criminalize people of color and disproportionately aim the state’s criminal power at Black men. It is the first step in mass incarceration, not just as a temporal matter, but as a social and political matter. Our misdemeanor system is one of the ways that we discriminate against the poor and people of color. It is an enormous exercise of state authority that disproportionately punishes people for their poverty and that historically and disproportionately punishes Black people. Our criminal system is not just a function of racial and economic inequality; it is one of the ways that we do it.

GAZETTE:  What policies do you think should be considered to change the unequal features of the misdemeanor system, which you call a powerful engine of injustice and inequality?

NATAPOFF:  The most important change is to shrink the net. In my view, everything else, all the specifics and the logistics, flow from a commitment to shrink our reliance on misdemeanor criminalization as a form of governance. I talk about more specific policies and changes in the book, but the most important change is to recognize how enormous, bloated, ineffectual, expensive, and unfair the misdemeanor system is, and to work on shrinking it. In the past few years, in particular this past year after the murder of George Floyd and the powerful influence of Black Lives Matter, we have started to think collectively about how to walk back our reliance on over-criminalization because we see its impact on our democracy. After all, Eric Garner was stopped and killed by police for a misdemeanor. Philando Castile was stopped and killed by police for a traffic misdemeanor. Michael Brown was stopped and killed by Ferguson police for a misdemeanor. George Floyd was stopped and killed for the allegation of a misdemeanor. Not only are misdemeanors the first step in over-criminalization and mass incarceration, but they are the first step in the way that we overexpose Black men to police violence. This past year of turmoil and change in this country and around the world has brought that to the fore.

GAZETTE:  There is a documentary based on your book. What was your reaction when you learned about it? What do you hope people can take away from both the book and the film?

NATAPOFF:  When the filmmakers reached out to me and said, “We’ve read your book. Can we make a movie about it?” I said, “Tell me how I can help.” I was very excited. I worked closely with the filmmakers to be supportive of their vision for the film. I also provided suggestions about people they could talk to and interview, about materials they could use, and they relied heavily on the research in the book itself to make the arguments in the film. The documentary is very powerful. I think people will learn an enormous amount from it. I’m excited that misdemeanor education can now take place in so many different media, in film, in a book, in classes, where educators can choose to screen the film or share the book with their students. My hope is this will advance the larger conversation that we are having in this country about how to change our criminal system. I am looking forward very much to the dialogue once the film is in the public sphere.

If I have learned anything in my years working in and around the criminal system, it’s that you never know what the agent of real change will be. I don’t think we can control the ripple effects of our contributions, all we can do is make our best effort to be part of the conversation in the way we hope to be.

This interview has been condensed and edited for length and clarity.