Column: Prosecuting nonviolent misdemeanors can lead to more crime
After a police officer murdered George Floyd, and the Black Lives Matter movement took wing across America, many of us learned, for the first time, that one key model for contemporary police departments was the slave patrols of the antebellum South.
After the Civil War, former slave states passed “black codes,” laws that essentially aimed at re-enslaving African Americans. New crimes, like vagrancy, were invented to control emancipated Black people. In South Carolina and Mississippi, offenders could be sentenced to forced plantation labor.
Given the DNA of American policing, is it any wonder that people of color and the poor are penalized disproportionately by the American criminal justice system to this day?
Harvard law professor Alexandra Natapoff noted in her groundbreaking 2018 book, “Punishment Without Crime: How our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal,” that as recently as 2016 in Baltimore, for example, police used a form to record trespassing arrests that had a blank space for a name of the arrestee but race and gender were already filled in: “BLACK MALE.”
Let’s say you are arrested for trespassing, or maybe for public drunkenness, both misdemeanors. In most states, if you can’t afford bail, you stay in jail. If you stay in jail, you might get fired from your job for an unexcused absence. If you get fired, you can’t pay your rent. If you can’t pay your rent, you might lose your home. And in most states, a deluge of fines and court fees related to even minor infractions penalizes the poor even further.
There is a growing awareness among a reform-minded group of prosecutors, academics and activists that prosecuting minor, non-violent crimes is not just overly punitive but counterproductive.
“I would argue that a portion of our houselessness is driven by misdemeanor prosecution,” said Los Angeles Dist. Atty. George Gascón last week after an online screening of Robert Greenwald’s new documentary, “Racially Charged: America’s Misdemeanor Problem.”
The documentary was inspired by Natapoff’s book.
As soon as Gascón took office in December, he ordered that people who commit low-level offenses like trespassing, disturbing the peace, public intoxication, loitering or driving with a suspended license be diverted to rehabilitation programs rather than face prosecution. (These are among his less controversial reforms; his order to stop using sentencing enhancements inspired a lawsuit by the union representing L.A. County deputy district attorneys, and pushback from more conservative district attorneys around the state.)
“We are in the middle of a war of ideas,” Gascón said June 9. “I call it a war because we have the carceral establishment that is pushing hard, very hard against the work we are trying to do here, which in part is in recognition that the whole industrial complex around misdemeanors not only doesn’t make us any safer, it makes us less safe.”
That claim may sound paradoxical, but there are indications that this may well be the case.
In March, a trio of academics — two economists and a data scientist — released a working paper for the National Bureau of Economic Research that looked, for the first time, at the correlation between prosecuting nonviolent misdemeanors and future criminal legal involvement.
“Across the board,” wrote Amanda Agan, Jennifer Doleac and Anna Harvey in an essay about their findings in the Washington Post, “we find that being more lenient on defendants — that is, erring toward non-prosecution — has big benefits.”
The authors analyzed 67,500 nonviolent misdemeanor cases in Suffolk County, Mass., between 2004 and 2018. Alleged offenders who were not prosecuted, they wrote, were “much less likely to find themselves in the courtroom again within two years. Entanglement with the legal system itself seems to be a risk factor for future criminal prosecution.” They looked at similar cases against similar defendants filed by more and less lenient prosecutors and found that outcomes tended to be better for those who’d landed with the less strict prosecutors.
Consider, they wrote, what happens to a prosecuted defendant who is not convicted: “A criminal record of the arrest will still be added to the state database. That record is then visible to other law enforcement agencies and potentially to employers, who may choose not to hire the person. Having a criminal record can have collateral consequences in many domains (reducing access to public benefits or housing, for instance) that also increase the likelihood of future criminal activity.”
In Los Angeles, City Atty. Mike Feuer has taken also taken on misdemeanor reform, but his approach is different. (The district attorney is responsible for prosecuting felonies in the entire county, and misdemeanors in unincorporated areas. The city attorney prosecutes misdemeanors committed within the city limits.)
“I do not agree with [Gascón] when he says there are a whole bunch of misdemeanors we are not going to file on at all,” Feuer told me Monday. “If you didn’t arrest, it implies there should not be a law against shoplifting, petty theft, misdemeanors we deal with all the time.” (Gascón’s directive applies to prosecution, not arrest, though critics say the policy disincentivizes arrests, as police are urged to focus on violent and serious crime.)
On Tuesday, Feuer announced his office would launch a pilot program aimed at diverting low-level offenders who are homeless, mentally ill and/or addicted to drugs into treatment or other social services. And since 2014, his office has overseen the Neighborhood Justice Program, a way for first-time, nonviolent offenders to take responsibility for their misbehavior and make a sort of reparation. A three-member panel of community volunteers metes out a “community obligation” to the offender, who is called a “participant.” If the offender completes the obligation, there is no criminal record. So far, said Feuer’s spokesman, 4,030 participants have gone through the program, with 3,753 of them completing it successfully. Feuer claims a recidivism rate of only 5%.
“It’s a non-court forum,” Feuer told me on Monday. “The person who committed the offense — the participant — comes in and our neighborhood justice volunteers ask, ‘What’s your life like? Why did you do what you did?’ There is a lot of empathy. The participant has to take responsibility for what she’s done: vandalism, graffiti, shoplifting. The panel’s job is to assign a community obligation to that person. The theory is there is a victim and a neighborhood, both of which have been diminished by the offense in some way.” An offender who does not fulfill their obligation, he said, will still face prosecution.
It’s refreshing that Los Angeles is on the cutting edge of misdemeanor reform. This is a movement whose time has come.
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