As we discuss racial disparities in the criminal justice system, it’s important to understand that the reason people of color are more deeply affected than their white peers is not because people of color are more prone to committing crimes. In fact, federal data indicates that people of all races tend to commit crimes at similar rates.
We do know that people of color are more likely to be contacted by police than whites, even for similar behavior. And, once someone has been contacted by the criminal justice system, the more likely they will be again. Arrest records are kept, for example, even when no charge was ever filed. And people with arrest records are more likely than others to be arrested again.
How much of this is truly necessary? It would be one thing if people of color were being arrested for serious crimes. But according to Alexandra Natapoff, a law professor and the author of a new book called Punishment Without Crime, 80% of all arrests and 80% of all state criminal dockets are for misdemeanor offenses.
“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 recently told NPR.
The misdemeanor system, like the rest of the criminal justice system, disproportionately affects people of color. It just hasn’t gotten its fair share of the blame.
Is ‘broken windows policing’ to blame?
The disproportionate impact of misdemeanor enforcement on people of color may have to do with a now-discredited theory of policing called “broken windows.” The idea was that if police cracked down on low-level offenses, people would be warned away from more serious crimes.
The result in practice was that police targeted African-Americans, Latinos and Native Americans for high rates of enforcement. That dragged many people into the criminal justice system for minor offenses.
There, unaffordable bail, criminal justice debt and other factors heavily disfavor the poor. People are held behind bars for weeks or months awaiting a trial date, potentially losing jobs, housing, child placement and all thee other collateral consequences that attend a stay in jail. Many simply give up and plead guilty, especially to misdemeanors.
It’s time to get rid of this dragnet
In order to reduce the number of people fruitlessly pulled into the criminal justice system for minor offenses, we need to change our focus at all levels.
Legislatures should examine their misdemeanor codes to determine if these are offenses for which we really want to expose people to jail.
Police and prosecutors need to focus on more serious offenses.
Misdemeanor enforcement costs us billions of dollars every year and exposes millions to jail. Yet there is little demonstrable benefit.