The Horrifying Kafkaesque Nightmare Of The U.S. Misdemeanor System

Everything is awful! Vote in local elections I guess!

I recently read the book Punishment Without Crime: How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal, and had to stop reading every few pages to stare at the wall and contemplate violent overthrow of the government.

In the United States, misdemeanors are medium crimes—not as serious as a felony like bank robbery or murder, but still crimes, unlike a traffic ticket. They can range from victimless misdeeds that people do all the time (jaywalking, loitering, spitting) to serious wrongdoing (drunk driving, domestic violence). And the criminal-justice process associated with them is a horrifying Kafkaesque nightmare.

There are about thirteen million annual misdemeanors,¹ which means that in a given year an American is as likely to be arrested for a misdemeanor as they are to go to the doctor for the flu, attend a four-year college, or buy a truck or SUV. About one-third of misdemeanor cases are diverted (if the defendant completes certain requirements they won’t be convicted) or dismissed (the prosecutor chooses not to press charges). The remainder nearly all result in a conviction.

Misdemeanors Are Often Not Really Crimes

We don't know how many misdemeanor cases are serious and how many are minor crimes. FBI data suggests that most misdemeanor cases are theft, assault, and drunk driving. Driving under a suspended license makes up 15-30% of misdemeanor cases, although they may be up to 60% of misdemeanor cases in some jurisdictions.

While it is probably true that most misdemeanor cases are crimes that everyone thinks should be illegal, many are not. Many misdemeanors are basically just The Crime Of Being Poor: being unable to pay your fines, speeding tickets, or car registration; sleeping in public; leaving a child unattended. It seems likely to me that the best solution to these problems is not punitive.

Disorderly conduct and resisting arrest (both misdemeanors) are called "contempt-of-cop" crimes, because they often boil down to a cop feeling disrespected or challenged. Cops often stop people and then manufacture probable cause for arrest, through charging them with disorderly conduct or resisting arrest. For example, as of 2008, nearly 2% of Seattle's black male population had been arrested for resisting arrest, with most charges dismissed. Asking questions of cops, talking back to them, and cursing at them are legally protected speech, but cops have a wide latitude to arrest people for these "crimes."

“Order-maintenance crimes” are crimes like jaywalking, disorderly conduct, loitering, littering, spitting, and some cases of trespassing. Most people technically commit order-maintenance crimes on a regular basis, so you might wonder why they’re still crimes. The reason is that order-maintenance crimes are not illegal in order to prevent jaywalking or littering. Order-maintenance crimes are illegal to give cops a lot of options in managing risky people—people who might commit serious crimes in the future, are bothering others, or are simply members of society’s underclass. While order-maintenance crimes are the most obvious example, a lot of the misdemeanor system serves a similar purpose: it is how we keep track of where likely criminals are, keep homeless people out of downtown, get drug addicts into treatment, and even perform some functions of the welfare state.

Because order-maintenance crimes aren’t about preventing the behaviors that they make illegal, wrongful or simply trivial arrests for order-maintenance crimes are common. For example, in the 2000s, the most common minor criminal charge that the Baltimore police arrested people for was loitering; in most cases, it amounted to nothing more than being on a public sidewalk without being able to give an explanation that the arresting officer found acceptable.² Between 2007 and 2012, the New York Police Department arrested 16,000 people per year for trespassing, mostly at housing projects; many arrestees were visiting friends or even were residents who happened not to be carrying ID. In 2015, nineteen thousand people were arrested for “vagrancy” (i.e. not having money or proof of employment), even though vagrancy laws have been unconstitutional since 1972.

Innocent People Are Often Convicted

The justice system puts almost no effort into making sure that innocent people aren’t convicted of misdemeanors. Prosecutors take only a few minutes to decide whether to press charges—if there even is a prosecutor, instead of the police deciding whether to press charges. In many districts, the average misdemeanor conviction takes only one to five minutes of the judge’s time.

White people charged with misdemeanors are more likely to receive reduced charges or to get their cases dismissed. The more minor the crime, the greater the racial disparity. In my opinion, the rushed nature of the misdemeanor system plays a serious role. A lot of racism is instinctive. If you put a lot of thought into the case, maybe your reason overrides your instincts, but if you’re only taking a minute per case you’re naturally going to use your “black people are criminals” heuristic.

97% of misdemeanor convictions are the product of a guilty plea. Many of those people are innocent. It seems pretty unlikely that the police have a greater than 97% accuracy rate.³ The (rare) studies back up the naive assumption: when Houston used more reliable drug tests on their drug samples, they discovered that many people had pled guilty to drug possession when they actually weren’t carrying drugs. Why would you plead guilty to a crime you didn’t commit?

Well, for one thing, many people literally do not know if they are guilty or not. Do you know what legally counts as "disorderly conduct"? Have you ever had a time in your life when you couldn’t be absolutely certain that no one left traces of marijuana in the back of your car?

But the system itself coerces guilty pleas. In low-level cases, defendants are often released and told to come back for their trial. Often, this involves bail: giving the court some money which you will lose if you don’t show up to your trial. If you can’t afford to pay bail, then you have to stay in jail until your trial. In many areas, bail is standard per crime—say, $500 for a misdemeanor. In most jurisdictions, the courts don’t take a person’s income into account when deciding how much to set their bail, so poor people are trapped in jail.⁴ Over half of the jail population is there for at least a month; 18% of the jail population, for over six months. That’s mostly people who can’t afford bail.

Jail is bad in many of the ways prison is. You face violence and rape. You are exposed to diseases like tuberculosis, hepatitis, staph infections, and pneumonia. You might lose your job. You might get evicted because you can’t pay your rent. You won’t be able to see your children.

But, for many misdemeanors, people are sentenced to a fine, probation, or time served. If you plead guilty, you’ll get to go home. It’s no wonder many people don’t assert their innocence.

Many people also plead guilty because they don’t have an adequate legal defense. Most misdemeanor defendants are poor and can’t afford a lawyer. If you can’t possibly get jail time for a crime, you have no legal right to a public defender. In states where the arresting officer also serves as a prosecutor, it’s not uncommon for defendants to have no one other than their arresting officer to guide them through what they’re supposed to be doing.

Many public defenders are dedicated, skilled lawyers who provide a vigorous legal defense. But far too many are "meet ‘em and plead ‘em" lawyers who meet with their clients exactly once to convince them to accept a plea deal. Often, “meet ‘em and plead ‘em” lawyers are good people and good lawyers, but they’re simply overworked. The American Bar Association recommends that no lawyer should have a caseload of more than 300 misdemeanor cases a year, but in Chicago, Miami, and Atlanta, the average public defender has over 2,000 cases a year.⁵

The U.S. legal system relies on defense attorneys to protect their clients’ constitutional rights by challenging illegally collected evidence, coerced confessions, wrongful arrests, and so on. “Meet ‘em and plead ‘em” lawyers don’t have the time or energy to do this, so civil liberties violations in the misdemeanor system are endemic.

According to reports from whistleblowers, judges routinely make up state rules of evidence that don’t exist.⁶ People plead guilty to drug crimes based on field drug tests; field drug tests have many false positives because they are finicky to perform, react to common nondrug compounds, and are invalidated in various temperatures and even in certain lights. A woman in New York City was ordered by cops to show them the pot in her bag, which meant that instead of ticketable marijuana possession she committed misdemeanor openly displaying drugs. In Baltimore, a standard form used for trespassing arrests has race and gender already filled in: BLACK MALE. Defense attorneys simply don’t have the resources to challenge any of these injustices, so there is no incentive for police and prosecutors to shape up. Which is the final reason innocent people plead guilty—even if you are innocent, there is every reason to believe that the evidence will be falsified and you will be convicted anyway.

Misdemeanor Convictions Have Serious Consequences

The reason we have a system this careless is that misdemeanor convictions don’t feel important. You’re sentenced to six months’ probation or a $300 fine, whatever. It doesn’t matter if some of the people are innocent, because the punishments are very light. We need to think about the people facing a decade in prison or even the death penalty.

But in reality misdemeanor convictions ruin people’s lives.

The most common punishments for a misdemeanor are probation and fines. Fines are not adjusted in accordance with the person’s ability to pay. To pay fines, many low-income people may skip meals, avoid necessary doctors' visits, or even become homeless. If you don’t pay your fines, you will be arrested (see “jail”). There are incentives to levy unreasonably high fines. In many cases, the judiciary is funded from fines. Sometimes judges are evaluated or even paid based on how much money they collect in fines.

Probation can disrupt nearly every aspect of ordinary life. People on probation can be searched at any time. The state owns as much as your free time as it pleases: for drug tests, visits to the probation office, therapy, parenting classes, Alcoholics Anonymous meetings. In some cases, the demands of probation are just petty cruelty: Punishment Without Crime mentions a woman on probation who was not allowed to move out of her mouse-infested house.

These punishments are bad enough. But more serious are what is called the “collateral consequences” of conviction: everything that happens because you were convicted that is not, legally, a punishment for the crime.

Fees are not technically fines: they're charges for services, such as being on probation, drug testing, electronic monitoring, jail, warrants, and public defenders. Yes, public defenders. Yes, if you can’t pay for a lawyer some states will make you pay anyway.

Fees are not negligible and often cost more than the fine for the crime itself: in California, the punishment for driving without auto insurance is a $100 fine and $390 in fees, plus an additional $325 if you’re ever late in paying.

In most states, failure to pay fines and fees is a probation violation. Unpaid fines and fees wreck your credit score, which means you can't borrow money, rent a house, or pass a background check to get a job. To pay their fines and fees, people stop buying food or health care or paying their rent, child support, and car insurance. Not paying the latter two, of course, gets you into more legal trouble. Some people sell drugs or steal to pay their fines and fees.

Fees are not technically a punishment… but you totally can get arrested if you don’t pay them. In fact, about a quarter of incarcerated misdemeanor inmates are incarcerated because they failed to pay a fine or a fee. Don’t worry! In many states, you get $50-$100 off your debt for every day you spend incarcerated. Well, except that 90% of jails charge a fee to inmates.

Me: Brain jail is awful. At least when you go to regular jail the state doesn't make you pay for it.
The American criminal justice system: Hold my beer.

However, even with jail fees, you do normally wind up in the green and can work off your debt.

Under the Equal Protection Clause, courts can't imprison people just because they are too poor to pay, only if they haven’t made a good-faith effort to pay. Of course, there’s nothing stopping a judge from inferring ability to pay from a person having cable, smoking cigarettes, or financially supporting a dependent.

Our society works with great determination to keep people with misdemeanor convictions from fully participating in society. Even a low-level arrest-- for a fistfight in a bar, for example-- can bar you from employment or volunteering. Many landlords refuse to rent to people who have been convicted of a misdemeanor. Under federal law, if you violate the terms of your probation, you lose access to TANF (i.e. welfare), food stamps, low-income housing, and SSI (i.e. cash payments for poor, disabled, or elderly people). If you’re convicted of a drug crime, you lose health care coverage and financial aid.

The majority of immigrants deported each year were deported because they were arrested or convicted of minor offenses. This doesn’t just apply to undocumented immigrants: legal residents can be deported for shoplifting $10 worth of stuff, misdemeanor drug possession, forging a $10 check, or turnstile jumping—even if they’re, say, the parent of a U.S. citizen. As I said above, misdemeanor defendants have no right to a lawyer unless they might be incarcerated-- even if they're going to be deported. Many immigrants have no idea that they need to plead down to a non-deportable offense.

In various states, a misdemeanor conviction bars you from an enormous number of professions: midwife, whitewater outfitter, geologist, veterinarian, real estate appraiser. I for one feel like it’s very important that my real estate not be appraised by someone who shoplifted one time.

The funniest is Delaware, which bars people with misdemeanor convictions from its witness protection program. We want to protect people who are testifying against organized crime, unless of course in the process of being a member of the mob they committed a crime.

Once you have a criminal record, cops are more likely to arrest you, prosecutors are more likely to charge you with serious crimes, and judges are more likely to impose long sentences. If you have a prior misdemeanor you're a "recidivist", which means you get longer sentences and often can’t participate in diversion programs. Even many arrestees believe misdemeanors don’t matter, so they don’t realize how badly a string of minor misdemeanor convictions is messing up their lives—until they can’t get a job because they failed the background checks or get a long sentence because they’re a repeat offender.

The psychological effects can be the most harmful. Many people convicted of misdemeanors feel deep guilt and shame, as well as rejection from their friends or loved ones. Many of them practice "system avoidance": not going to institutions that keep formal records because they're scared something bad will happen. They are far less likely to participate in politics or to vote, probably because they don’t trust the system to be just.

Reform Is Difficult

The system is obviously broken, but many attempts to fix it actually make the situation worse.

For example, you might want to lighten penalties for certain misdemeanors, such as marijuana possession. Perhaps you want to put people arrested for marijuana possession in a diversion program, or even turn it into a civil offense (like a traffic ticket). Unfortunately, there are a number of bad side effects. Diversion and civil offenses are cheaper than punishment, so more people can go through the system. Police officers, knowing that marijuana possession isn’t punished very harshly, will be more likely to arrest people that previously they would have let off with a warning. Because the arrestees can’t afford lawyers and the penalties are relatively light, they’re more likely to plead guilty, even if they’re innocent. And here’s almost no accountability for police being racist in ticketing people—even less than the already low amount of accountability for police being racist in misdemeanor arrests. This process, called “net widening”, can lead to more justice-system involvement in people’s lives—often private behavior that harms no one.

This broad pattern of reform having unintended consequences—particularly unintended consequences that expand the reach of the justice system—happens a lot. For example, replacing bail with electronic monitoring gives the government much more ability to control the behavior of people who have not yet been convicted of a crime.

It’s difficult to know whether, in any particular case, the net-widening effect will outweigh the direct effects of reform. I suspect that it’s usually dependent on the specific crime, exactly how the law is written, the culture of the police department and prosecutors’ office, and so on. Because very little data is collected about misdemeanors, reformers are often flying blind.

This is not to say that reform is impossible. The author recommends a number of reforms that might be helpful, many of which don’t risk a net-widening effect:

• Prevent people from coming into contact with the misdemeanor system in the first place (e.g. through expanding access to homeless shelters).

• Legalize behaviors that shouldn’t be crimes in the first place (e.g. loitering).

• Train police not to arrest people for e.g. standing around on street corners looking suspicious.

• Eliminate money bail for low-level offenses.

• Give prosecutors enough time and training that they decline misdemeanor cases that don’t have enough evidence.

• Ensure everyone has a defense lawyer.

• Ensure that defense lawyers have no more than 300 cases a year. ⁷

• Make more use of diversion programs.

• Allow people to work off fines and fees through community-service hours instead of incarceration.

• Adjust fines depending on the defendant’s income.⁸

• Routinely seal or expunge misdemeanor records after an appropriate period of time.

• Maintain accurate databases so background checks don’t turn up sealed/expunged cases or cases that were diverted.

• Let people who violate probation keep their welfare benefits.

• Don’t suspend people’s licenses unless their crime is related to dangerous driving.

• Don’t deport people for minor misdemeanors.

• STOP rewarding police for arresting more people.

• STOP funding the judiciary based on how many fines and fees it collects.

• Collect adequate data about misdemeanors so we can know how well all of this is working.

Many of these are inappropriate for some situations, or may wind up paradoxically expanding the reach of the state. But with careful attention to local conditions it is possible to improve this nightmare system.

Conclusions

As I read Punishment Without Crime, I was continually reminded of my experience at a mental hospital. It’s not that anyone was intending to create a horrifying Kafkaesque nightmare. It’s that policies were set by what sounds good to well-intentioned people who don’t know what being in the system is like. It’s that it’s hard, maybe impossible, to create a system that pervasively controls every aspect of a person’s life and doesn’t abuse them. It’s that it’s okay (some people think) to violate people’s constitutional rights as long as you’re not doing it for very long. It’s that, if you’re one of the kinds of people we’re controlling anyway, we’re going to take advantage of the opportunity to lop off any of the messy confusing unpopular parts of your life that other people don’t like. It’s that there were not enough people, always not enough people, everyone is overworked and burned out and the more you care about doing right by the vulnerable people in your care the more overworked and burned out you are.

And most of all it’s that severely mentally ill people and people in the criminal justice system don’t have a voice.

Most severely mentally ill people and people in the criminal justice system are poor, and campaigning for reform takes time, money, and energy they don’t have. Many severely mentally ill people and most people in the criminal justice system are poorly educated: I was horrified to discover that forty percent of prison inmates can't use a menu to calculate the cost of a sandwich and salad. Most severely mentally ill people and people in the criminal justice system cannot speak in a way that makes powerful people listen to them: people in the criminal justice system because of their class background; severely mentally ill people because of both class background and neurodivergence.

And those of us who are rich and well-educated and capable of speaking in a way that the powerful will listen to—well, it’s easy to assume that the injustice is that we were treated like that. Like one of them.

In the final analysis, the system hurts us because it can hurt us, without anyone facing any consequences.

Most of my American readers probably commit at least one relatively minor misdemeanor on a regular basis: jaywalking, loitering, acting disorderly, spitting in public, littering, smoking weed, speeding while driving. You may have gone through a bad patch in your life where you committed more serious misdemeanors: shoplifting, drunk driving, simple assault, passing bad checks.

Because of their race and class, most of my readers do not have to fear the misdemeanor system.⁹ But people caught up in the misdemeanor system are people like you. You should want the misdemeanor system to work the way that you would want it to work for you if you were arrested.

The things people arrested for misdemeanors ought to have are simple to the point of being cliche: not being arrested for actions that ought not be crimes; protection of civil liberties; due process of law; punishment that is neither cruel nor unusual. But they are cliche because they are so often denied. I urge you to keep the misdemeanor system in mind when you are voting in local and state elections.

1. The author of Punishment Without Crime SUFFERED for this data. We collect almost no data about the misdemeanor system because people don’t think it’s important, and she went on a grand Hero’s Journey of phone calls to have an even vaguely accurate number. Moment of silence for her sacrifice.

2. Even today, in spite of interventions by the Department of Justice, the Baltimore police massively overarrest people for loitering.

3. Greater than 97% because of course some people plead not guilty when they’re guilty.

4. Bail bondsmen, who charge a 10% fee to pay your bail for you and ensure you show up in court, are legal in 46 states. But the 10% fee is still inaccessible for a lot of people, and many bail bondsmen don’t work on misdemeanor cases anyway because the profit margins are too low.

5. The ABA is an organization whose primary purpose is to get lawyers jobs, so it’s possible it’s underestimating what an appropriate caseload is—but let’s be real here, there’s no way you can provide a vigorous defense if you’re defending six people a day, every day, including weekends.

6. We have no good data about how common this is—very little data is collected about misdemeanors at all.

7. Expensive, I know, but ideally you could cover it out of the money saved through not arresting people frivolously.

8. I know, rationalists love the idea of fines being a Pigouvian tax on bad behavior. I really do not think it is working very well.

9. Except for drunk driving, which is enforced with remarkable equality across races and classes.