Just a misdemeanor? Think again

Professor Alexandra Natapoff’s 2018 book, “Punishment Without Crime,” is the basis for a new documentary.

Credit: Loyola Law School, Los Angeles

Nation & World
Just a misdemeanor? Think again

Liz Mineo

Harvard Staff Writer

March 10, 2021 long read

Law professor’s book on how the system punishes the poor and people of color has inspired a new documentary

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.

Q&A

Alexandra Natapoff

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.

“Even although we treat misdemeanors as minor or petty, there is nothing minor about the consequences of sustaining a misdemeanor conviction.”

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.

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.

“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: 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.