Overcriminalization of Low-Level Offenses: Perpetuating Poverty and Racial Disparities in the Misdemeanor Criminal Justice System

Abstract

Misdemeanors cover a broad range of conduct. Some misdemeanors cover serious conduct, like drunk driving or domestic assault. But more frequently, misdemeanors cover minor offenses like speeding and low-level drug possession, or “quality-of-life” offenses such as sleeping in public, loitering, disorderly conduct, and panhandling. Because misdemeanors are considered “minor” or low-level, they receive much less attention that felonies. But responses to misdemeanors are proportionately much harsher than their felony counterparts. Overcriminalization has been defined as “the overuse or misuse of criminal law to address societal problems that could be remedied more effectively though the civil legal system or other institutions.”2 In the context of low-level offenses and the misdemeanor criminal justice system, the increasing criminalization of a broad range of conduct facilitates and perpetuates racial and class disparities for low-level offenses. It does this in two ways. First, the misdemeanor system targets poor and minority individuals and communities. Virtually all actors in the criminal justice system exercise substantial discretion. Police decide where to patrol, who to stop, who to search, and who to arrest. Prosecutors decide which cases to bring, what charges to indict, what plea deals to offer, and what sentences to recommend. And judges make the pivotal decision of what sentence the defendant ultimately receives. Bias influences all of these decisions—both implicit and explicit. And the system is self-reinforcing, relying on inherently biased data based on past discriminatory practices to justify the continued use of those same practices. This targeted enforcement is illustrated by the significant racial and class disparities that exist in the misdemeanor system. Poor and minority individuals are significantly overrepresented in the misdemeanor system, and this disparity is completely unwarranted. Black individuals are not any more likely to commit crimes that their white counterparts. Many of the differences between black and white defendants—such as criminal history—are due to past discrimination. But even holding these other variables constant, black individuals are still more likely to experience negative outcomes than white individuals. These disparities pervade all stages of the misdemeanor system—black individuals are more likely to be stopped, searched, arrested, charged, and incarcerated. But this discrimination extends beyond the criminal justice system. Studies have shown that white applicants with a criminal record were still more likely to get a job than black applicants without a criminal record. These disparities, both within the criminal justice system and without, are unjustified and unwarranted, and illustrate the consequences of a system that targets these groups specifically. Second, the consequences of these low-level offenses are relatively extreme, and far outweigh the severity of the conduct. Fines and fees are the most common punishment for misdemeanor violations, but these fines do not take ability to pay into account. Poor defendants who are unable to pay, through no real fault of their own, suffer increased fines and additional penalties, including the possibility of incarceration, while similarly situated wealthier defendants are not negatively impacted. And the consequences extend well beyond those imposed by law. Those with a criminal record may face additional indirect consequences, including difficulties finding and keeping housing and employment. Overcriminalization facilitates this targeted and discriminatory enforcement and perpetuates these disparities. The sheer volume of misdemeanor offenses, covering conduct as serious as domestic violence, to minor conduct such as jaywalking, spitting, or even using Silly String, means that most of us commit many of these crimes. But we are not all equally as likely to be charged for a violation. With so many offenses, it is easy for law enforcement to stop someone for whatever reason, and then identify some offense they may have committed after the fact. But this has it backwards. No one should be subjected to the consequences of the criminal justice system for any reason other than committing a morally reprehensible offense. If the system impacted all demographics equally, the problems posed would be very different, but it is low-income and minority individuals and communities that bear the brunt of the enforcement, and consequently, the brunt of the negative impact. And ultimately, no one solution in any one area will solve the problem. There are many potential reforms that address the issue directly—such as decriminalizing conduct—and these reforms are necessary, but by themselves, criminal justice reforms are insufficient. The causes of racial discrimination go well beyond the criminal justice system—i.e., structural and economic inequality, implicit and explicit bias, history of slavery, racism, etc. “The ultimate aim of criminal legal system reform cannot be to lessen racial disparities; the endpoint must be to eliminate these disparities altogether.”