Natapoff on innocence and the misdemeanor plea mill

Alexandra Natapoff this week presented a particularly sagacious version of innocence advocacy in the Washington Post (Nov. 11), titled, "The cost of ‘quality of life’ policing: Thousands of young black men coerced to plead guilty to crimes they didn’t commit." The piece confronts, in virtuoso fashion, some of the same topics which the Innocence Project of Texas recently recommended the new Timothy Cole Exoneration Review Commission take on: Particularly the pressure on innocent defendants to plea guilty to small-time offenses because of pretrial detention. Wrote Natapoff:

Once charged, the misdemeanor process then exerts enormous pressure on individuals to plead guilty, especially if they are stuck in jail because they cannot make bail. As a result, many of them end up convicted of crimes they never committed, such as loitering, trespassing, disorderly conduct, or resisting arrest. It can happen to anyone, but because we overpolice young black men in low-income neighborhoods for precisely these types of minor crimes, it’s more likely to happen to them.

That's exactly right. Grits has declared before that I consider Sasha Natapoff a personal intellectual hero, and I don't use the h-word lightly. She's one of those rare thinkers who, whenever she considers a question deeply, the world becomes a better place as a result. Her work on informants revealed a rich vein of deep moral thinking and critical analysis which I predict the criminal-justice reform movement will mine for ideas for the next three decades. Then, her work on misdemeanors once again took a portion of the system that's treated as a relatively obscure backwater and charted a navigable route toward addressing false convictions, arguably, at a deeper and more profound level than one could ever reach exclusively through post-conviction means. As she sees it:

Such wrongful convictions represent the convergence of two of our criminal system’s worst flaws: its racial skew and its rush to convict.  Think of it as Black Lives Matter meets the innocence movement.  Our criminal system is widely criticized for targeting and overpunishing African Americans and communities of color.  But that longstanding criticism has generally focused less on whether minority defendants are actually guilty, and more on the disproportionate targeting and racism built into the system. Conversely, the innocence movement has shaken the criminal justice world by uncovering hundreds of wrongful convictions in very serious cases like rape or murder. But it has not zeroed in on the much larger pool of innocent defendants coerced into pleading guilty to minor crimes every year.

Why do these wrongful convictions remain invisible?  One reason may be the common belief that a petty conviction is no big deal. But minor convictions have major consequences. A misdemeanor conviction can deprive a person of a driver’s license, public housing, student loans, or legal immigration status. Even an arrest record can interfere with job prospects, and most employers say they check criminal records before hiring. True, the typical formal punishment for a misdemeanor is probation or a fine, not incarceration. But many offenders end up in jail anyway for failure to pay fines they cannot afford. In short, the misdemeanor process is probably burdening thousands of innocent African-Americans not only with the stigma and indignity of a wrongful conviction, but a crushing array of collateral consequences.

The structural problem lies with the misdemeanor system itself, the front-line mechanism through which we disproportionately sweep African-Americans up into the criminal system and label them, often inaccurately, as criminals. If we made the effort to expose these wrongful minor convictions, we might also accomplish something even more fundamental: disrupting the mythological link between blackness and criminality. That insidious myth, which dates back to slavery and still infects many aspects of American culture and governance, won’t be eliminated overnight.  But we — and our presidential candidates — can take a step in the right direction by recognizing that many of the young black men we convict of minor crimes and then treat as criminals for the rest of their lives are actually innocent.

Because of overcriminalization, some of the low-level offenses Natapoff discusses are actually felonies in Texas, like possessing less than a gram of a controlled substance, but her points are still well taken.

There are many brands of false convictions besides the case of the rape victim who mistakenly identifies an innocent man as her assailant, even though that's the storyline in a huge number of DNA exonerations to date. More common and insidious, though, may be false convictions for lesser offenses based not so much on honest error as coercion and expedience. Those false convictions the innocence movement has barely considered, much less begun to address.