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Alexandra Natapoff, Misdemeanor Criminalization, 68 Vand. L.Rev. 155 (2015).

The recent cascade of highly-publicized murders of American black men and women by police and by white “domestic terrorists” has brought into public debate one of the most spectacular forms of American anti-black racism. Ruth Wilson Gilmore defines this racism as “the state-sanctioned or extralegal production and exploitation of group-differentiated vulnerability to premature death.” Michael Brown’s body—killed by police in Ferguson, Missouri in August 2014 and subsequently left on the street for hours—has come to literally embody American contempt for black life.

But Ferguson also exposed a less lethal manifestation of American racism: the reliance of strapped-for-cash municipalities on fines and fees imposed on the poor through the criminal justice system. In her article, Misdemeanor Criminalization, Alexandra Natapoff warns us that one attempt to scale back mass incarceration may, paradoxically, expand racism in this subtle but insidious form. Turning felonies such as drug crimes into misdemeanors, she argues, expands the potential for American cities and counties to make money off poor people—with disturbing implications both for people of color and for the nature of criminal justice.

Natapoff begins her argument by distinguishing “decriminalization” from outright “legalization.” She observes:

Commentators on the left and right, the ABA, the NACDL, and numerous scholars have called for decriminalizing minor offenses as a solution to a wide array of systemic problems. This consensus is fueled in part by a special legal feature of misdemeanors: minor offenses that carry no possibility of jailtime do not trigger the Sixth Amendment right to counsel. Accordingly, eliminating incarceration for misdemeanors looks like a kind of win-win: it relieves defendants of the threat of imprisonment while saving the state millions of dollars in defense, prosecution, and jail costs. Motivated by persistent fiscal crises, many states have accordingly been experimenting with the decriminalization of various crimes, most prominently marijuana possession but also driving on a suspended license, traffic and other regulatory offenses. (P. 1058.)

Yet, though the scaling-back of what academics have taken to calling the “carceral state” is a welcome shift away from the recent, seemingly unstoppable push for building more and more prisons and lengthening sentences that so plagued American politics and society, Natapoff reminds us that reducing felonies to misdemeanors does nothing to disrupt the power of police to harass, abuse, beat up, or even kill suspects on the street, or “the usual panoply of burdens [incident to this power,] including arrest, probation and fines, criminal records and collateral consequences.” (Pp. 1058-1059.) Even civil infractions that cannot serve as the basis for arrest may “derail a defendant’s employment, education, and immigration status, while the failure to pay fines can lead to contempt citations and incarceration.” (P. 1059.) And, Natapoff emphasizes, precisely because they are not technically crimes, infractions “can be imposed on offenders quickly, informally, and without counsel, so that the standard procedural safeguards against wrongful conviction and overpunishment are lessened if not eliminated altogether.” (P. 1059.)

This leads Natapoff to a larger point: if it takes hold in a big way, this sort of decriminalization may signal an incorporation of the carceral state by the poverty-industry state. Misdemeanors and civil infractions are cheaper for government to enforce than felonies, making possible a classic “net-widening” effect, “extending the informal consequences of a citation or conviction deep into offenders’ social and economic lives.” (P. 1059.) Combine net-widening with the continuing crisis of chronically underfunded government services, and state and local agencies may come to lean ever more heavily on the fines and fees they collect from small-time criminal offenders. As the Washington Post recently explained, “some of the towns in St. Louis County can derive 40 percent or more of their annual revenue from the petty fines and fees collected by their municipal courts.” Natapoff notes that such policies in effect serve as a regressive tax—and that nothing in this dynamic is colorblind.

Nor, in the end, would replacing mass incarceration with widespread “black taxes” even necessarily scale back the moralism that has long infused American criminal justice. In an important new ethnography, Nicole Van Cleve of Temple University explores the workings of the Cook County, Chicago criminal courts. Her research details a widespread hostility and disdain expressed by judges, prosecutors, and defense attorneys alike toward so-called “mopes:” the low-level offenders, overwhelmingly poor and black or brown, who fill the court system and receive assembly-line treatment. Van Cleve argues powerfully that “mope” is a racialized slur, mobilizing moral disgust for poor people who have made “bad choices” and do not deserve to be treated with dignity. Increased reliance on decriminalization has the potential to produce ever more mopes, substituting for the stereotype of the violent black brute the stereotype of the shiftless, dependent, morally dissolute black loser.

Natopoff’s article, the fourth in a series exploring the role of misdemeanors in the American criminal justice system, sounds an important warning. As the killings of black men and women continue to shock the nation, it is important not to seize upon partial solutions like decriminalization that merely, in Reva Siegel’s words, accomplish “preservation through transformation.” “Black lives matter” means more than the right to bare life. It also means the right to a life with dignity, and governance that protects rather than preys upon the poor.

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Cite as: Angela Harris, Discipline and Fine, JOTWELL (October 23, 2015) (reviewing Alexandra Natapoff, Misdemeanor Criminalization, 68 Vand. L.Rev. 155 (2015)),