The true costs of criminal justice for misdemeanor crimes is often overlooked but easy to find outside the lower-level courtrooms at 201 Poplar in Downtown Memphis.
A young woman dressed for success in black pants and a coat squats against the brick wall outside a General Sessions criminal courtroom with her head bowed and a hand shielding her face, as if silently sobbing. She rises and moves away when asked to talk.
Nearby, Ladarius Reed, 28, stands holding his soon-to-be 1-year-old daughter, one of his three children. He is waiting for her mother, who is in court for a first-time driving-under-the-influence misdemeanor charge.
Reed said his own brushes with the law, not all of them minor, have left him with a deep sense of injustice. He had been accused of a robbery he said he wasn’t involved in. His driver’s license was suspended for not paying court costs he said were unjust. He’s washing dishes at restaurants because he can’t pass background checks for better-paying work like truck driving.
“It bothers me so much; I try not to think about it,” Reed said. “It’s tearing me up. It’s terrible, terrible. It stopped me.”
Punishment without crime
In her new book, “Punishment Without Crime,” University of California, Irvine Law Prof. Alexandra Natapoff is the latest expert voice calling for change and recognition of the damaging costs of justice system overreach for low-level crimes, particularly for low-income people, African-Americans and other people of color.
“The misdemeanor system, of course, is important for all communities,” Natapoff told MLK50: Justice Through Journalism in a phone interview. “Anyone can get a misdemeanor. The misdemeanor system comprises 80 percent of all American criminal dockets. It’s an enormous phenomenon that touches rich and poor, black and white communities, Latino communities in rural, suburban and urban communities.
The misdemeanor system comprises 80 percent of all American criminal dockets. It’s an enormous phenomenon that touches rich and poor, black and white communities, Latino communities in rural, suburban and urban communities.
“But it is of particular importance,” Natapoff continued, “because of its influence in poor communities of color and the ways in which it exacerbates and creates disadvantage.”
Memphis and Shelby County is ground zero for these issues, said Josh Spickler, executive director of Just City, whose mission includes working for a smaller, fairer and more-humane criminal justice system.
“The criminal justice system, of which the misdemeanor system is the largest part, is crippling our community,” said Spickler, a former Shelby County public defender. “It’s crippling our economy, it’s crippling our education system, the housing, mental health. It impacts every corner of the things we would identify as necessary to have a healthy, productive community. It’s gone ignored for way too long.”
A big tent for crimes
In Tennessee, the universe of misdemeanors includes three levels with punishments ranging up to $2,500 and jail time up to 11 months and 29 days. They can range from driving under the influence to shoplifting, possession of less than half an ounce of marijuana and simple assault.
Lower-level “order of maintenance” or “quality of life” misdemeanors, such as disorderly conduct and jaywalking, also “make it a crime to do unremarkable things that lots of people do all the time,” according to Natapoff.
Thousands of misdemeanor arrests are made in Memphis and Shelby County each year. Misdemeanor citations, which allows people to avoid being taken to jail, provide the biggest pipeline for people arriving in General Sessions Criminal Court. The court oversaw nearly 65,000 citations for the 2017 budget year, a 50 percent increase from 2015. Shelby County budget documents forecasted another increase to more than 71,000 citations for the 2018 budget year.
Criminal justice and courts are an enormous expense for county government, together accounting for more than $350 million for 2019 and consuming 75 percent of general fund property taxes. Fines, fees and permits are a major source of revenue for criminal and civil courts in Shelby County, raising an estimated $22.4 million in 2018. That represents nearly 30 percent of $77.5 million in judicial spending.
Arrested development
Willie Effinger, a divorced father of two, a former postal worker, chef and current member of East End Church of Christ, is a veteran of the misdemeanor system. He estimates he was arrested for misdemeanor theft more than 30 times.
Effinger said he was a long-time shoplifter. He aimed to keep the value of his thefts below $500, which was then the line between petty and felony theft. He also knew six months was the actual maximum sentence he’d serve, which he did more than once, he said.
While Effinger was in his 50s, crack cocaine plunged him into what he considered the “devil’s lifestyle.” He kept a promise to the Lord to go straight after he was caught attempting to take two televisions from a Walmart in Jackson, Tennessee, he said. That would have been a felony. Today, he’s crossed the retirement age of 65 and has been clean for about six years, he said.
“A lot of times there’s reasons behind what you did,” Effinger said.“The system, if you could help people: What’s the problem is the question.Why are you doing what you’re doing? Is it drugs? You got mental problems? But a lot of times people have to want help.”
Assembly line injustice?
Large numbers of people funneled into courts creates pressure for speed and guilty pleas, according to Natapoff and other critics.
“The Supreme Court has worried that the sheer volume of misdemeanors creates an obsession for speedy dispositions, regardless of the fairness of the result,” Natapoff writes.
One casualty of that speed can be constitutional rights, including the right to be represented by an attorney or public defender when facing possible jail time. The American Bar Association Section on Civil Rights and Social Justice watched General Sessions Criminal Court misdemeanor proceedings in Nashville for a day in 2016.
Judges and prosecutors failed to adequately inform people of their right to have a lawyer or public defender, court observers reported. Judges made little or no effort to determine if people could afford fines, fees and costs when sentenced. Those facing payments weren’t told to apply for a waiver or reduction.
“The burden of these practices fall disproportionately on the poor and minorities because those are the persons who are the most frequent defendants in the courts observed,” the report said. “Unfortunately, what transpires in the courts in Nashville is not all that different from what happens in countless misdemeanor courts in much of this country.”
Collateral consequences
Understanding the “collateral consequences” of pleading guilty to a low-level crime is an important benefit of having a lawyer, the ABA report said.
An online database, the National Inventory of Collateral Consequences, suggests how far the costs of a low-level criminal conviction can stretch.
“Specifically, in Tennessee, mandatory collateral consequences for misdemeanor convictions include, among others, forfeiture of student loans, grants or financial assistance supported by state funds for education; ineligibility to serve as an employee or volunteer with a mental health residential treatment facility for children or youths; ineligibility to serve as an adoptive or foster parent, and ineligibility for caregiver employment with child care services,” the report said.
When convicted of a misdemeanor, federal consequences may include being prohibited from living in public housing and the ability to work in homes for the elderly. People can become ineligible to work as a child care provider or receive immediate disaster assistance, according to the ABA report.
Tennessee laws just pile on.
“A database that catalogs these and hundreds of additional collateral consequences for each of the 50 states shows that Tennessee laws provide for 152 collateral consequences for misdemeanor convictions and 390 collateral consequences pursuant to federal laws,” the report said.
At Just City, Spickler said suspending driver’s licenses for failure to pay court costs, fees and taxes with no finding of why payments weren’t made was one of the biggest collateral consequences in Tennessee. And in a 2018 ruling, a federal Judge in Nashville outlawed the state’s practice of revoking driver’s licenses of people who didn’t pay their court debt.
“So you have tens of thousands of Shelby County citizens who have lost their license for the sole reason that they didn’t pay court costs, whether by choice or inability, just by poverty,” Spickler said. That leaves “every other part of their life” hamstrung.
Crime and money
The list of court fines, fees and taxes can be long.
Court records, for example, list the charges Effinger faced after pleading guilty to driving on a revoked license:
A $29.50 state litigation tax, a $3 victim notify tax, a $2 judicial commissioner education fee, a $12.50 misdemeanor fee, a $40 officer fee, a $10 construction tax, a $6 judge salary litigation tax, a $4 library litigation tax, a $29.50 county litigation tax, a $40 clerk fee, a $4 clerk data processing fee, a $15 traumatic brain injury fund fee, a $15 state traffic fine and a $50 regular county fine. The total was $260.
Court records, for example, list the charges Effinger faced after pleading guilty to driving on a revoked license:
A $29.50 state litigation tax, a $3 victim notify tax, a $2 judicial commissioner education fee, a $12.50 misdemeanor fee, a $40 officer fee, a $10 construction tax, a $6 judge salary litigation tax, a $4 library litigation tax, a $29.50 county litigation tax, a $40 clerk fee, a $4 clerk data processing fee, a $15 traumatic brain injury fund fee, a $15 state traffic fine and a $50 regular county fine. The total was $260.
Money, Natapoff writes, is a central issue in the low-level criminal system. The problems include bail systems that lock people in jail if they lack the wealth to post bond, pressure on courts and police to produce revenue, and court debt that burdens low-income people most heavily.
“In the first instance, many low-level crimes are crimes of poverty: They punish people for being unable to afford car insurance, housing or child care by making it a crime to drive without insurance, sleep in a public place or leave a child briefly unattended,” according to Natapoff.
“Misdemeanors also make people poorer in a variety of ways. Fines and fees strip them of their wealth. Driver’s license suspensions — a common result of failing to pay traffic fines — get people fired and cause them to miss school, doctor’s visits and job interviews.
“Being jailed for failure to pay fines and fees drives people deeper into poverty. Since nearly half of all Americans have trouble coming up with an extra $400 in an emergency, standard misdemeanor fines and fees threaten devastation for a broad swath of the population,” Natapoff wrote.
Crime and race
Among the people summoned to at 201 Poplar on a recent Friday, only a handful were not African-American.
African-Americans are both overpoliced for the low-level crime and underpoliced for serious crime, wrote Natapoff: “It is, for example, the petty-offense process that overpolices African-Americans for low-level crimes, arresting them and sending them to jail. These are the official practices that give initial substance to stereotypes about race and crime by dispensing arrest records and jail experiences to thousands of people of color each year.
“In a self-reinforcing cycle, neighborhoods characterized by high arrest rates then get treated as ‘high-crime’ communities — an epithet that often triggers declining property values, middle-class flight, loss of public services and yet more overpolicing,” according to Natapoff, who pointed to politics for contributing to this cycle: Even a majority African-American city like Memphis is subject to a red-state legislature in Nashville with all its race, class and historical implications.
“One of the reasons our system looks the way it does is because the population most affected by criminal policies are so often the most politically vulnerable,” she told MLK50: Justice Through Journalism. “This is true of of cities in or surrounded by counties or in states that may have interests at odds with the city.”
“So we always have to ask ourselves the question, do we have a political dysfunction that is creating overcriminalization for our most vulnerable citizens?”
Searching for solutions
Natapoff points to signs of positive change. In 2017, a federal judge Texas declared the misdemeanor bail system in Harris County, where Houston is, unconstitutional. Philadelphia decriminalized disorderly conduct and public drunkenness. Ten states and Washington D.C. have legalized small amounts of marijuana for adult recreational use and 33 have legalized medical marijuana.
“We’re in a hopeful moment in the criminal justice conversation. Our country has finally reached, more or less, a consensus that mass incarceration is a very bad idea. It’s unfair, it’s racist, it’s expensive, and it doesn’t work.”
Alexandra Natapoff, University of california, irvine Law Professor
A number of new prosecutors across the country are taking seriously their role in shrinking the misdemeanor system and improving its integrity, she said. One example is Rachel Rollins in Boston, the new Suffolk County district attorney who won office with a campaign promising not to prosecute 15 petty crimes.
“We are no longer going to criminalize poverty, mental illness and substance use disorder,” Rollins pledged. “We are going to end the wealth and racial disparities in our incarceration rates.”
Other prosecutors around the country have also promised or begun to reduce the number of misdemeanor arrests that grow into full-fledged criminal cases, Natapoff said: “They are performing an extraordinarily important role in not only shrinking the misdemeanor system but improving its integrity because the prosecutorial screening function is so important.”
The wave of new district attorneys is a sign that people are realizing they can be held accountable locally. Local governments and officials also control some court and jail policies as well.
“We don’t have to wait for the Supreme Court. We don’t have to wait for Congress to make changes,” according to Natapoff, who said legislatures have a role, and police can better select who gets arrested and why.
“We’re in a hopeful moment in the criminal justice conversation,” Natapoff said. “Our country has finally reached, more or less, a consensus that mass incarceration is a very bad idea. It’s unfair, it’s racist, it’s expensive, and it doesn’t work.”
Editor’s note: Kevin McKenzie was arrested by Memphis police at the Wolfchase Galleria mall in November 2018 and charged with the misdemeanor of criminal trespass. He had used his cellphone to make a video of a young African-American man who, with friends, challenged the mall’s hoodie policy and was arrested by Memphis police and Shelby County sheriff’s deputies moonlighting as mall cops. With the help of an attorney, the criminal trespass charges against both men were erased, but court costs were charged.
This story is brought to you by MLK50: Justice Through Journalism, a nonprofit reporting project on economic justice in Memphis. Support independent journalism by making a tax-deductible donation today. MLK50 is also supported by the Surdna Foundation and Community Change.