Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal, by Alexandra Natapoff, Basic Books, 352 pages, $30
The plight of Ashley, chronicled in a recent class-action lawsuit filed in Tennessee, reads like a Book of Job as written by a petty bureaucrat. The 26-year-old single mother was working at Waffle House, making $2.13 an hour plus tips, when she was pulled over in a Nashville suburb. Cited for speeding and failure to carry proof of insurance, she was assessed $477.50 in fines and court costs. When she did not pay, the state suspended her license without notifying her.
In subsequent months, Ashley was pulled over again and fined $224.50, and then again and fined $244. She was finally, belatedly, informed that her license had been suspended this whole time and that she now owed $946. Finding herself in court facing the misdemeanor charge of driving on a suspended license (another $439.50), Ashley offered to make an $80 payment toward the total. She was informed that no partial amounts could be accepted and that her license could not be reinstated until she had paid her debts in full, plus an additional $388 in reinstatement fees.
Ashley lost the job at Waffle House. Without a valid driver's license, she had no reliable transportation to her shifts. If she continued driving on a suspended license, she might incur more fines. But if she couldn't get to work, she couldn't earn the money she needed to pay the debt.
Federal District Court Judge Aleta Trauger, who in July 2018 issued a preliminary ruling that Tennessee's inflexible approach to automatic license suspensions is likely unconstitutional, has observed that it's hard to understand the state's reasoning for giving indigent citizens no opportunity to have a hearing or negotiate a reasonable payment plan, unless "the purpose of such a scheme were to make an indigent driver's first traffic violation her entrée into an endless cycle of greater and greater debt."
Reading this story in isolation, one might think that Ashley was uniquely unlucky or irresponsible. But Alexandra Natapoff's new book Punishment Without Crime makes it clear that the young mom's plight is relatively typical for Americans, especially poor Americans, who have the misfortune to interact with the edifices of government that enforce laws against misdemeanors, traffic violations, and other supposedly "petty" offenses.
Each year about 13 million people are charged with misdemeanors in the United States. They are disproportionately poor and disproportionately black or Latino. Because the state considers the offenses minor and the punishments mild, courts adjudicate these cases in a relatively rudimentary way, often processing guilty pleas in a matter of minutes and without providing the accused with counsel.
One problem with speedy processing is that the state is rarely required to provide much (if any) evidence supporting the charges. Untold numbers might be pleading guilty to crimes they haven't actually committed or submitting to punishments that a lawyer might have been able to reduce.
Still, a speedy process might be unobjectionable (despite the risk of error) if a misdemeanor conviction had little lasting effect on a person's life and if the punishments were, in fact, mild. Neither is the case.
Natapoff, who teaches law at the University of California, Irvine, shows that misdemeanor convictions can lead to a permanent criminal record, potential jail time, and increasingly—as Ashley's case demonstrates—a spiraling crisis of debt owed to the government in the various guises of fines, fees, court costs, and taxes. Follow-on consequences can include loss of a job or housing (whether because of formal ineligibility or because of time spent in jail), loss of immigration status, a diminished credit rating, restrictions on driving, and more. The book describes misdemeanor enforcement as a sprawling net of interlocking laws, practices, and institutions that together impose what are essentially regressive taxes, as states, localities, and private companies seek to squeeze revenue from "an ever-widening pool of mostly low-income people."
In one sense, these phenomena are not new. Police have long targeted the poor and other vulnerable groups, and low-level courts have long operated in a slapdash manner shocking to observers expecting full-fledged due process.
There is at least one way, though, in which the burdens of petty justice have become heavier in recent years. As the Department of Justice documented in its report on Ferguson, Missouri, localities increasingly rely upon court-imposed fees as a significant revenue source for funding basic government operations, creating a fiscal incentive to punish as many people as possible. This situation is more acute in some places than others—Ferguson was found to derive a fifth of its annual budget from fines and fees, while Phoenix, Arizona, derives less than 2 percent of its budget from the same. This suggests that there is no necessary connection between running a local government and squeezing revenue out of poor residents. States and localities also increasingly contract with private companies to manage probation supervision, then permit these companies to charge probationers directly for the "privilege" of being supervised.
For readers unfamiliar with how misdemeanor proceedings operate, Natapoff's book offers a panoramic introduction to their many petty indignities. For readers already aware of the contours of the problem, the book offers a compendium of data and examples. It makes a compelling case that it is difficult to justify how misdemeanor justice operates, whether your criterion is human dignity, just punishment, democratic governance, or simply government efficiency. (Trying to extort money out of people who do not have any is not the most efficient way of raising revenue.) Conferring so much discretion on local police and prosecutors, Natapoff suggests, "creates and tolerates" patterns of "informal local authoritarianism"—patterns reinforced by the Supreme Court's recent lack of interest in rigorous enforcement of the Fourth Amendment.
Law professors tend to define their job in terms of helping to solve problems. Natapoff duly includes a final chapter issuing recommendations for change. I found some of these recommendations intriguingly disconsonant with the rest of the book.
Her suggestions include criminalizing less conduct, arresting fewer people, sending fewer people to jail once arrested, eliminating court fees for people who are genuinely indigent, and detaching eligibility for government benefits from low-level criminal convictions. So far, so good.
But then there are a number of fuzzier recommendations that call upon officials and ordinary people to, essentially, enlighten themselves. Natapoff urges lawyers, judges, police, and court officials to take what they are doing more seriously. Even when adjudicating a minor offense, they should "behave like it matters." Prosecutors should "screen and exercise their discretion thoughtfully," and judges should "run their courtrooms in lawful, rigorous, and respectful ways." Voters and citizens should recognize that even misdemeanor convictions carry serious consequences and think harder about whether to define minor misbehavior as "criminal" to begin with: "Wealthy college kids who smoke weed, undocumented laborers who drive over the speed limit, single mothers who live in heavily policed public housing, and prosperous lawyers who drive home after a scotch" should recognize that "we are all petty offenders." Precisely because misdemeanor justice is so highly localized, Natapoff expresses hope that we live in "an exciting moment with enormous possibilities" for local innovation to alleviate the problems she identifies.
I found it difficult to muster the suggested optimism. Perhaps it was because, by the time I got to the recommendations, I had just reviewed 200 pages describing people doing blatantly disturbing things to one another, cloaked in the authority of law. A 50-year-old woman, unable to work because of debilitating pain, was arrested for shoplifting, placed on probation with a private company, and forced to pay monthly fees, including $20 a pop for regular drug testing, until she eventually lost her car because she could not afford to pay for that too. A homeless Iraq War veteran got drunk, found himself "convicted of destruction of property and resisting arrest," and was ordered to pay $2,600 in fines (he owned, at the time, $25). Two black men "were arrested in a Philadelphia Starbucks for 'trespassing' because one of them asked to use the restroom without placing an order." Can the police, prosecutors, legislators, and judges responsible for these incidents reasonably be called upon to behave more "thoughtfully"? Or is there something in the nature of giving people power over others that makes such thoughtfulness hard to maintain?
As for wealthy college kids and prosperous lawyers, I share Natapoff's hope that our best bet for better misdemeanor policy is if they recognize their common humanity with undocumented laborers and single mothers. Hopefully some of them will read this book.