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Would less misdemeanor enforcement create a fairer system?

On behalf of Dolan + Zimmerman LLP March 29, 2021

As protests continue across the U.S. and even globally, many experts have come forward with ideas for how to improve the criminal justice system so that it isn’t so unfair to people of color. Harsh police tactics, over-policing in minority neighborhoods, racial profiling and other issues have brought us to a point where it’s obvious that some kind of change is necessary. 

What gets people of color involved in the criminal justice system most of the time? Misdemeanor offenses. As a matter of fact, misdemeanors make up 80% of all arrests in the U.S. and 80% of all state court dockets, according to Alexandra Natapoff, a law professor and author of the book Punishment Without Crime. 

It may come as a surprise that these low-level offenses make up so much of what our criminal justice system does. They’re not necessarily unimportant — DUI and domestic violence are both charged as misdemeanors, in many cases. But misdemeanors tend to include more things like public spitting and trespassing.  

“This is the beginning of how we sweep people of color, and African Americans in particular, into our criminal system,” Natapoff told NPR. 

‘Broken windows policing’ 

Racial profiling, over-policing of minority neighborhoods, and tactics like “stop and frisk” are arguably all part of a theory called “broken windows policing.” 

The idea was that focusing aggressively on low-level offenses would set an example for people and keep them from committing more serious ones. The idea became very popular nationwide in the 90s and 2000s. Unfortunately, there is very little evidence to show it works. 

There may be little evidence that broken windows policing reduces crime, but there is good evidence about what it does in exchange. It costs us billions in enforcement and overwhelms our criminal justice system. 

Moreover, when people come into contact with the criminal justice system, it can have very negative consequences, even in a misdemeanor case. If bail is required, it may be unaffordable for the defendant. That could mean weeks or months behind bars awaiting resolution of the case. That often means the person loses their job and housing. This is true even for people who are never convicted. 

Shrink the dragnet 

As we work on creating a more just and equitable criminal justice system, Natapoff argues that we need to rein in misdemeanor enforcement. Legislatively, we can roll back our misdemeanor codes. Police departments could commit to focus more on enforcement of serious offenses. Prosecutors could refuse to prosecute most misdemeanors unless they are serious. 

Since misdemeanors make up about 80% of all activity in our state criminal systems, reducing misdemeanor enforcement could have a profound effect on mass incarceration.