Punishment Without Crime

INTRODUCTION

WHEN MAC WAS THREE YEARS OLD AND ANYA WAS FIVE, they watched their mother get arrested for a seatbelt violation. It was 1997, and the family was driving slowly, about fifteen miles per hour, around the park in their hometown of Lago Vista, Texas, because Mac had lost his special toy. The children had taken off their seat belts so they could look out the car windows for the toy. Officer Bart Turek pulled them over and began yelling and pointing his finger in Gail Atwater’s face. “You’re going to jail!” he hollered. Atwater asked if she could take her wailing children to a friend’s house first, but Officer Turek said the children would go to the jail right along with her. Gail Atwater was handcuffed, taken to the police station, and locked in a cell. She was booked and fingerprinted for the misdemeanor seatbelt violation. Eventually she paid the maximum penalty for her offense, which was $50. Afterward, both children were terrified of police cars. If Mac saw a police officer, he would get down on the floor and curl up into ball. But the law permitted Officer Turek to do everything he did. When the Supreme Court of the United States considered Gail Atwater’s case, it decided that police may arrest and jail people for even the most minor misdemeanors.¹

A few years later across the country in New York, nineteen-year-old Sharif Stinson had a different sort of encounter with the misdemeanor system. Stinson visited his aunt in the Bronx every week to see how she was doing. One day, as he left his aunt’s apartment building, police ordered him up against the wall. They searched him, and although they found nothing, they arrested him and took him to jail. After four hours, he was released and charged with disorderly conduct. Stinson hadn’t actually committed any crime, and a judge dismissed the charge, calling it “legally insufficient.” Three weeks later, Stinson was back checking on his aunt. Once again, he was stopped, arrested, and jailed. This time he was charged with trespassing as well as disorderly conduct. Once again, he hadn’t committed any crimes, and a judge dismissed the charges. These sorts of arrest practices have become controversial in New York. Some New York police officers attribute them to informal quotas requiring that police clock a certain number of arrests and citations or risk professional discipline. The New York Police Department denies the quotas.²

Misdemeanors like Gail Atwater’s traffic violation and Sharif Stinson’s disorderly conduct charges are the chump change of the criminal system. They are labeled “minor,” “low-level,” and “petty.” Sometimes they go by innocuous names like “infraction” or “violation.” Because the crimes are small and the punishments relatively light in comparison to felonies, this world of low-level offenses has not gotten much attention. But it is enormous, powerful, and surprisingly harsh. Every year, approximately 13 million people are charged with crimes as minor as littering or as serious as domestic violence.³ Those 13 million misdemeanors make up the vast majority, around 80 percent, of the nation’s criminal dockets. Most arrests in this country are for misdemeanors. Most convictions are misdemeanors. Most Americans will experience the criminal system at the misdemeanor level. Through this enormous process, millions of people are arrested, charged, booked, perhaps jailed, convicted, and punished in ways that can haunt them and their families for the rest of their lives. While mass incarceration has become recognized as a multi-billion-dollar dehumanizing debacle, it turns out that the misdemeanor behemoth does quieter damage on an even grander scale.

Misdemeanors have slipped beneath the public radar largely because their impact and importance are so thoroughly underestimated. Punishments are usually deemed minor, but there is nothing petty about them. The misdemeanor process commonly strips the people who go through it of their liberty, money, health, jobs, housing, credit, immigration status, and government benefits. Even a brief stint in jail can be dangerous. People with misdemeanor arrests and convictions often lose their jobs and find it hard to get new ones. Fines and fees lead to incarceration for those who are too poor to pay them. Students, poor people, and the elderly can lose their government aid. For immigrants, a misdemeanor can trigger deportation. The petty-offense process does all this punishing quietly, often informally, without much fanfare, millions of times a year.

Sometimes misdemeanors don’t even look much like crimes. In twenty-five states, speeding is a misdemeanor. Loitering, spitting, disorderly conduct, and jaywalking belong to a large group of crimes called “order-maintenance” or “quality-of-life” offenses, and they make it a crime to do unremarkable things that lots of people do all the time. By contrast, some misdemeanors are quite serious—drunk driving and domestic assault for example. The spectrum is wide: as we will see, some misdemeanors punish the same sorts of harms that felonies do, while many others go after common conduct that isn’t particularly blameworthy or harmful at all. Because the law designates such a vast array of common behaviors as criminal, rendering a nearly unlimited number of people potentially subject to its reach, the misdemeanor system is enormous.

Because the petty-offense process is so large, it tends to move cases fast. This has earned it some choice nicknames like “cattle herding,” “assembly-line justice,” “meet ’em and plead ’em” lawyering, and “McJustice.” The Supreme Court has worried that the sheer volume of misdemeanors “create[s] an obsession for speedy dispositions, regardless of the fairness of the result.”⁴ In practice, this speedy volume means that people’s rights and dignity often get trampled. In North Charleston, South Carolina, for example, a grandmother, whom we will call Grandma G, was on trial for shoplifting in 2014. She did not understand what was happening to her or the legal words that the judge was using, and she asked for a lawyer. This only seemed to make the judge angry. She couldn’t afford an attorney, but the judge would not postpone the case to give her time to fill out the public defender form. But Grandma G could not represent herself. At first she tried to speak up. Then she spoke quietly. Then she just mumbled. Then she gave up and stopped talking. “How do you want to plead?” asked the judge. Grandma G said nothing. “Do you want a bench trial or a jury?” Grandma G said nothing. The judge went ahead anyway and swore in a witness from Walmart, who said Grandma G had taken meat and cake. “What’s going on?” asked Grandma G. “Do you want a bench trial or a jury?” repeated the judge. Confused, Grandma G waved her hands around. “I don’t care,” she said. The Walmart witness said that Grandma G’s two-year-old granddaughter had been with her in the store. This made the judge even madder. “There’s not a lot I can do for you, ma’am.” He pronounced her guilty and sentenced her to thirty days in jail. Grandma G was led out of the courtroom, sobbing and in handcuffs. The whole trial and sentencing took less than three minutes.⁵

Grandma G’s experience was typical in a couple of ways. First, it was fast. In Florida, most misdemeanor cases are resolved by guilty plea in three minutes. Proceedings in the Hot Check Division of Sherwood District Court in Arkansas last less than two minutes. Some St. Louis municipal courts handle over five hundred cases in a single night court session, less than one minute per case.⁶ Second, Grandma G’s constitutional rights were violated. Defendants like her who face jail time have the right to counsel—the judge should have given her an attorney. But in practice misdemeanor defendants often don’t get lawyers. In some lower courts, judges routinely instruct defendants to go work out their cases directly with the prosecutor. Sometimes there are no prosecutors; police officers prosecute the cases themselves. In yet other courts, the judge is not even a lawyer.⁷

Even when defendants do get lawyers, they still might not get proper representation. Many public defenders are burdened with hundreds and sometimes thousands of cases and therefore cannot give time or attention to any one of them. In cities like Chicago, Atlanta, and Miami, misdemeanor public defenders carry over 2,000 cases a year—over five times the caseload recommended by the American Bar Association.⁸ Such overburdened attorneys may simply inform their clients about the deal offered by the prosecutor and get them to sign. Hence the nickname “meet ’em and plead ’em.”

In this sense Grandma G’s experience was unusual: she did not plead guilty. Misdemeanor trials like hers are rare—around 97 percent of misdemeanor convictions are the result of a guilty plea.⁹ Because the misdemeanor system speeds cases along, defendants often take a deal without being fully informed of their rights and options or without fully understanding the consequences of their choice. Many will plead guilty without anyone checking the evidence to see whether they actually committed a crime. This dynamic not only contradicts numerous fundamental legal rules, it also invites wrongful conviction: innocent people arrested for low-level offenses routinely plead guilty to crimes they did not commit. They might do so because they do not have a lawyer, or their court-appointed attorney might lack the resources to investigate the case. Innocent people might also plead because they are too poor to pay bail—a financial deposit required by the court—meaning that they will remain in jail for weeks or even months until their cases are over. Pleading guilty, on the other hand, typically lets them go home. Because the pressures to plead guilty are omnipresent and the petty-offense process is huge, wrongful convictions probably occur hundreds of thousands of times a year.

In short, the American misdemeanor system often violates basic legal principles of justice and fairness. Here are a few examples, detailed later in this book, that show how troubling the low-level criminal process can get:

As such examples show, the petty-offense process can be gravely unfair, inaccurate, and disrespectful. But it isn’t always. In some places and for some people, the process works more like it should. In federal courts, for instance, which have smaller caseloads and more resources, indigent defendants charged with shoplifting or DUI get skilled counsel, and courts routinely hold hearings and proper trials. In some cities, senior prosecutors carefully screen the misdemeanor docket to make sure that only the right cases go forward. There are top-notch public defender offices around the country that provide representation as good or better than any expensive law firm. Wealthy defendants with time and resources can ensure that their minor cases are treated seriously. This kind of care and attention is the legal gold standard. Rules matter. Evidence makes a difference. Prosecutors honor their obligation to do justice. Defendants have lawyers who have the resources to do their jobs. If the criminal system is a pyramid, this is the top, where the criminal process works as well as it can—for misdemeanors and serious felonies alike.¹⁵

Of course even the best legal process cannot make up for fundamentally unjust rules. No amount of good lawyering will ever make it fair to criminalize people based on their race or religion or for being sick or poor.¹⁶ But the better the process, the more likely it is that unfair rules will be challenged, that officials will exercise their discretion carefully, and that punishment will be balanced. Sometimes, at its best, the US criminal process lives up to these important values.

Unfortunately, the top of the pyramid is small. Most of the misdemeanor system, and quite a bit of the felony system too, falls far short of the gold standard. It is often said that we have two justice systems, one for the rich and one for the poor, but in practice there is no bright line. Rather, there is a gradual erosion. As offenses get pettier and defendants get poorer, a host of pressures and resource constraints diminish basic commitments to rules, evidence, fairness, and the presumption of innocence, slowly and quietly changing how the system does its work. By the time we hit the bottom of the pyramid, the criminal process has become an enormous, sloppy, shadowy world through which millions of Americans get rushed every year. There are felony cases down here—low-level drug felonies are often handled in speedy, sloppy ways, and even the most serious felony defendants are sometimes treated with shocking indifference. But the bottom is mostly misdemeanors.

As a result of such dynamics, our misdemeanor system does something that criminal justice is not supposed to do: it punishes people who have not actually committed a crime or done anything to deserve punishment. Hence the title of this book. The petty-offense process punishes people while they wait for their cases to be handled and are still presumed innocent. It punishes innocent people for crimes they didn’t commit. It punishes people for harmless or common minor behavior that should never have been treated as a crime in the first place. And it keeps punishing people long after they have served their sentences. In each of these scenarios innocent people are unfairly trapped: punished before they have been convicted, punished although they did nothing wrong, or punished after they have already paid their debt to society. It turns out that the court-imposed formal penalty of a fine or probation or jail is only part of what actually happens to people; the sentence is neither the beginning nor the end of the misdemeanor punishment story. Rather, individuals caught up in the misdemeanor process live through layers of punitive treatment that can outweigh and outlast any legal sentence. The experiences of being arrested, jailed, fined, and supervised, telling your family, fearing to tell your employer, getting a criminal record, and potentially losing your job, credit, welfare benefits, immigration status, or housing—all of these taken together amount to an enormous burden. Unlike with most felonies, that burden can be far worse than the legal sentence itself. And it can kick in regardless of whether the person deserves it or has committed anything resembling a blameworthy or dangerous offense. This is punishment without crime.

Misdemeanor convictions, moreover, don’t always mean what they say. A conviction is a weighty thing. It is supposed to represent the justice system’s studied conclusion that the defendant engaged in blameworthy conduct worthy of censure and punishment. A solid murder or rape conviction tells us something meaningful about that person’s conduct and by extension his or her moral choices. But convictions are only as meaningful as we make them. The quality of the decisions, evidence, and processes that underlie a criminal conviction determine its true significance. Because the misdemeanor system consistently generates convictions in sloppy and biased ways, it distorts the meaning of those millions of convictions, divesting them of their factual and moral content. Being convicted of a misdemeanor, in other words, might mean that you did something bad and deserve to be labeled a criminal. But it very well might not.

Like mass incarceration, the misdemeanor phenomenon reflects deep and abiding flaws in the US justice system. But its significance does not end there. Misdemeanors influence vital aspects of the public sphere; they shape race relations; they regulate employment; they affect immigration. The process is also an economic behemoth, quietly redistributing billions of public and private dollars. Misdemeanors thus fuel some of America’s most infamous inequalities, especially the gap between rich and poor and the disparate treatment of people of color.

The misdemeanor system widens the rich-poor gap by punishing low-income and working people on a grand scale. It makes it a crime to do lots of things that poor people can’t help doing, like failing to pay fines, fees, speeding tickets, or car registrations. It strips working people of crucial resources like driver’s licenses, housing, and credit, which hurts their ability to earn a living and thrive. It pushes the poor back into poverty even as civil welfare programs struggle to lift them out. US jails are filled with working, poor, and homeless individuals who are there solely because they could not pay a fine or a fee—a new kind of debtors’ prison.¹⁷

Many of these regressive practices can be traced back to the economic incentives of key institutions in the misdemeanor system. Courts, municipalities, and police departments around the country rely on misdemeanor revenues to fund their own operations. Some judges’ salaries depend on collecting fines and fees from the people they convict. Small cities and local courts raise millions of dollars from misdemeanor and traffic offenses. Port Arthur, one of the poorest cities in Texas, created a special infraction unit that brings in $1.5 million a year. In Sherwood, Arkansas, the county imposes a $25 prosecution fee, a $50 warrant fee, and two $20 jail fees for each bounced-check case; Sherwood police collect fines on the spot from those they arrest.¹⁸ Meanwhile, private probation companies derive all their revenue from user fees charged to defendants, as does the powerful bail bond industry.

And so, in effect, the petty-offense process has quietly become a regressive feature of American tax policy. It actively extracts revenue from an ever-widening pool of mostly low-income people in order to fund the operations of private as well as public criminal justice institutions. This is not how the criminal system is supposed to work—generating revenue is not a good reason to punish people—but it is a core characteristic of the misdemeanor institution.

This is not an entirely new problem: the American criminal system has an ignominious history of punishing the poor. It is equally if not more infamous for punishing people of color, especially African Americans, and misdemeanors have long been central players in that shameful drama. After the Civil War, southern states used misdemeanors to effectively re-enslave hundreds of thousands of African Americans, rounding them up to convict them of petty offenses and selling them to plantations and factories to work off their sentences.¹⁹ In many of those same states, modern jails are now debtors’ prisons filled with poor people of color who have been arrested and convicted in order to generate revenue.

Today, the misdemeanor system is the frontline mechanism through which many people of color are drawn into the criminal system in the first place, arrested, marked, and convicted for minor offenses, or sometimes for no crimes at all. We have come to understand mass incarceration as an engine of race discrimination that unfairly and disproportionately criminalizes black and Latino Americans. But the trouble actually starts earlier with racial inequities in misdemeanor policing and processing. Chicago police arrest African Americans for marijuana possession seven times more often than they arrest whites, even though whites and blacks use marijuana at the same rates. In North Sacramento, California, half of all 2016 jaywalking tickets were issued to black residents, who make up just 15 percent of the population. It is here at the bottom of the pyramid that the criminal process first aims broadly at people of color, mostly black men, arresting them for disorderly conduct, trespassing, drug possession, and other minor order-maintenance offenses. Once arrested and funneled into the legal system, the majority plead guilty. Because the system is sloppy and fast, moreover, many of these convictions are wrongful—the risks are especially high that black men are pleading guilty to petty offenses that they did not actually commit.²⁰

This is how the petty-offense process actively marks thousands of African Americans as “criminal,” a corrosive dynamic with both immediate and historic effects. The criminal marking prevents people from getting jobs, housing, education, and loans, derailing major aspects of their lives. It sets some people up for the more serious felony convictions that have created our current mass incarceration crisis. And it insidiously fuels the racist stereotype that black men are criminals. Although it has not received its fair share of blame, the misdemeanor process has long been centrally responsible for forging that pernicious link between blackness and criminality that has haunted American culture and politics for centuries. Arrest by arrest and case by case, the misdemeanor process forcibly connects black people to the criminal system, arresting them, convicting them, and labeling them criminals for minor conduct, and sometimes for no good reason at all.

In these ways, the misdemeanor experience has become an integral feature of what it means to be socially disadvantaged in the United States. Most misdemeanor enforcement impacts the disadvantaged: the poor and working-class, African Americans and Latinos, immigrants, the young, the homeless, the mentally ill, and the addicted. It is a feature of disadvantage—poor people and people of color are more likely to encounter the petty-offense process in the first place. But it also generates disadvantage by impoverishing the already poor, stigmatizing people of color as criminal, and generally making vulnerable people worse off. The petty-offense process is an omnipresent aspect of growing up in disadvantaged neighborhoods, of being a young black male, increasingly of being an immigrant, and generally of being poor. As a result, the misdemeanor apparatus is powerfully stratifying. Like low-quality public schools and segregated housing, misdemeanors are an integral part of the downward social cycle that creates and perpetuates inequality.

It is time to recognize that the misdemeanor process is more than just a criminal system. In practice and effect it is also an influential economic and social welfare institution. The misdemeanor process has become a tool for cities to regulate residents of public housing and enforce gentrification boundaries. Police departments use minor offenses to measure productivity and to generate salary increases and promotions. Courts, jails, and cities rely on misdemeanors to raise revenue. In other words, we have authorized the misdemeanor system do all sorts of social, political, and economic work that has little or nothing to do with crime, public safety, or justice.²¹ Like education, housing, and welfare policy, the petty-offense process is one of those central collective institutions through which we make big decisions about our democracy, how to allocate and redistribute resources, and how to manage poverty, crime, and community. Although it is not traditionally understood in this way, the misdemeanor process belongs in the pantheon of social institutions that shape the basic contours of organized society.

This book examines the entire misdemeanor process, from arrest through prosecution and punishment, what happens to people in the system and afterward, and its implications for the US economy, society, and democracy. Until now no one has tried to write a book of this scope, and there are some good reasons for that. The misdemeanor system is enormous, decentralized, and complicated. It isn’t even really a “system” at all—it is actually thousands of interlocking offices, players, and practices. It encompasses police, prosecutors, public defenders, judges, jurors, attorneys, arrestees, sheriffs, probation officers, clerks, defendants, victims, families, and members of the public. It also includes powerful private entities like bail bondsmen, probation companies, drug-testing companies, and data aggregators. Each institution plays a different role. Sometimes they align and cooperate; sometimes they compete and conflict. Jurisdictions vary wildly from state to state, county to county, even city to city. Massachusetts has little in common with Mississippi. I use words like “system” and “institution” for convenience and clarity, but it would be just as accurate to refer to the whole misdemeanor apparatus metaphorically as a machine or an ecosystem or a behemoth. Indeed, the difficulty in finding a good word is part of the problem—what the hell is this thing, anyway? It is challenging to draw strong general conclusions about something that is so tough to pin down.

Another reason that this book hasn’t been written before is that it is very hard to get national information about the petty-offense process. Many jurisdictions do not even count all their minor offenses. A 2009 report estimated, based on the limited data available at the time, an annual docket of 10.5 million cases. Until then no one had even tried to figure out how many misdemeanors were filed nationally. As I prepared to write this book, I collected extensive new data from every state around the country. That information, summarized in the appendix, now provides the most accurate picture of the national landscape to date—the data show that approximately 13 million misdemeanors were filed in this country in 2015. This is an astounding number—the system is 25 percent bigger than we thought it was, and four times the size of the felony system.²² And even that 13 million number doesn’t tell the whole story. Jurisdictions do not keep records in the same ways or sometimes at all. Although I provide caseload estimates for every state, comparisons should be made cautiously. Labels mean different things in different courts, so totals are not always comparable. Moreover, 2015 is just a snapshot: the system could well have been even bigger ten years ago. Nevertheless, my data compendium offers an unprecedented window into the size, specifics, and variations of an institution that has long resisted scrutiny and oversight. I hope it will inspire future research.

Perhaps the real reason no one has tried to write a book like this is that the misdemeanor process has not traditionally been conceptualized as a whole, from start to finish, as a single thing. Rather, it is chopped up into components. Many people have written about stop-and-frisk policing and low-level drug arrests. Others analyze the overwhelmed and underfunded misdemeanor defense bar. Since the 1920s sociologists have been studying the peculiar operations of low-level courts.²³ More recently, misdemeanor bail has moved into the spotlight. The US Department of Justice’s 2015 investigation of the Ferguson Police Department exposed the importance of misdemeanor fines and fees. I spent the last seven years researching and writing about many of these components myself.²⁴