Law Professor On Misdemeanor Offenses And Racism In The Criminal System

Jun 12, 2020
Originally published on June 13, 2020 3:47 pm

The police killings of George Floyd, Eric Garner and other black men and women began with allegations of a minor offense, such as passing a counterfeit $20 bill or selling individual, untaxed cigarettes.

Misdemeanors — these types of low-level criminal offenses — account for about 80% of all arrests and 80% of state criminal dockets, says Alexandra Natapoff, a law professor at the University of California at Irvine and author of Punishment Without Crime.

"It's surprising to many people to realize that misdemeanors — these low-level, often chump-change offenses that many of us commit routinely without even noticing it — make up the vast majority of what our criminal system does," Natapoff tells NPR's Ari Shapiro on All Things Considered.

"The offenses can include everything from traffic offenses to spitting, loitering, trespassing, all the way up to more serious offenses like DUI or many domestic violence offenses," she says. "It's ... the vast majority of ways that individuals interact with police."

Natapoff says the misdemeanor system has "not gotten its fair share of blame" for the racism of the U.S. criminal justice system and how it disproportionately affects people of color.

"This is the beginning of how we sweep people of color, and African Americans in particular, into our criminal system," she says, through over-policing black neighborhoods, racial profiling and practices like stop-and-frisk.


Interview Highlights

On the argument that misdemeanors can be used as a way to discover more serious crimes

The fancy word for [that] is "broken windows" policing. There is at best contested, and at worst, negative evidence to indicate that's true. Instead, what we have learned is that over-policing misdemeanors is extraordinarily expensive. It costs us billions of dollars every year, it puts millions of people in jail, it overwhelms our criminal systems, our public defense apparatus. We are spending an incredible amount of social capital to double down on low-level offenses with little, if any, demonstrable upside and enormous downsides.

On how to move forward

I think the bottom line is to shrink the net. And we can shrink the net by shrinking our misdemeanor codes — that's the job of the legislature. We can shrink the misdemeanor net by reducing arrests, that can be a legislative action, decriminalization for example, it can be the decision by individual police departments, and it can be the decision by prosecutors to move away from the enforcement of these low-level offenses and focus on more serious offenses. And then we can punish less, we can arrest less, we can incarcerate less, we can fine less. It's zeroing in on that net and finding ways to shrink it.

Listen to the full interview at the audio link above.

Copyright 2020 NPR. To see more, visit https://www.npr.org.

ARI SHAPIRO, HOST:

We've been talking all week about what it means to defund police, and part of that conversation involves examining what we consider a crime. George Floyd was killed by police while he was under arrest for allegedly using a counterfeit $20 bill. Eric Garner was taken into custody for allegedly selling untaxed individual cigarettes. He died after an officer put him in a chokehold. Misdemeanors like these, along with low-level drug offenses, traffic infractions and so on, make up 80% of all arrests and 80% of criminal cases on state dockets. That's according to research by Alexandra Natapoff, a law professor whose book on the subject is called "Punishment Without Crime." She joins us now.

Welcome.

ALEXANDRA NATAPOFF: Thanks so much for having me.

SHAPIRO: Eighty percent is a huge number. Tell us more about what types of crimes these are and why they make up such a large proportion of arrests.

NATAPOFF: It's surprising to many people to realize that misdemeanors, these low-level, often chump-change offenses that many of us commit routinely without even noticing it, make up the vast majority of what our criminal system does. The offenses can include everything from traffic offenses to spitting, loitering, trespassing, all the way up to more serious offenses like DUI or many domestic violence offenses. It's the vast majority of what the American criminal system does and the vast majority of ways that individuals interact with police.

SHAPIRO: And what can you tell us about how these laws are enforced differently across neighborhoods or racial groups?

NATAPOFF: So the misdemeanor system has not gotten its fair share of blame for the racism and disproportion of our criminal system. This is the beginning of how we sweep people of color and African Americans in particular into our criminal system, through overpolicing black neighborhoods, through racial profiling, driving while black, stop and frisk, all the practices that we've been grappling with over the past few years in more depth. These are often misdemeanor practices. It's how we police low-level conduct. And this is the beginning of the disproportion and the unfairness and all too often the violence that permeates our criminal system.

SHAPIRO: Why are some of these really low-level offenses even considered crimes in the first place?

NATAPOFF: That's a great question. It goes to the very heart of the matter of what do we think our criminal system is for? I think when you ask people, we think of serious offenses and violence and harm and victims. But most of the time, we use our criminal system to go after people for conduct that we don't even think of as particularly bad or harmful or that qualifies as a crime. Traffic is the most famous. Trespassing and loitering and jaywalking and spitting and these low-level conduct offenses make up a large percentage of what it is that we tell police to do and the kind of conduct that we use the criminal system to regulate.

SHAPIRO: Is there an argument that sometimes you need a misdemeanor offense to get somebody for a more serious offense? You know, a broken tail light leads to a major drug bust.

NATAPOFF: So the fancy word for what you just said is broken windows policing. There's at best contested and at worst negative evidence to indicate that's true. Instead, what we have learned is that overpolicing misdemeanors is extraordinarily expensive. It costs us billions of dollars every year. It puts millions of people in jail. It overwhelms our criminal systems, our public defense apparatus. We are spending an incredible amount of social capital to double down on low-level offenses with little, if any, demonstrable upside and enormous downsides.

SHAPIRO: And so what's the solution? Is it about police and prosecutors choosing not to go after these low-level offenses, or is it about lawmakers passing legislation that makes them no longer crimes?

NATAPOFF: I think the bottom line is to shrink the net. And we can shrink the net by shrinking our misdemeanor codes. That's the job of the legislature. We can shrink the misdemeanor net by reducing arrests. That can be a legislative action - decriminalization, for example. It can be the decision by individual police departments. And it can be the decision of prosecutors to move away from the enforcement of these low-level offenses and focus on more serious offenses. And then we can punish less. We can arrest less. We can incarcerate less. We can fine less. It's zeroing in on that net and finding ways to shrink it.

SHAPIRO: That's Alexandra Natapoff, a law professor with UC Irvine about to start at Harvard Law. Her book is called "Punishment Without Crime: How Our Massive Misdemeanor System Traps The Innocent And Makes America More Unequal."

Thank you for talking with us.

NATAPOFF: Thanks so much for having me. Transcript provided by NPR, Copyright NPR.