Author, Expert & Speaker

An estimated 13.2 million misdemeanor cases are filed in the United States each year. This number is overwhelming and concerning. Masses of poor and homeless people are sucked into an overburdened misdemeanor trapdoor system designed to inflict misery and sustained hardships.

In her 2018 book Punishment without Crime, law professor Alexandra Natapoff estimates that “approximately 730,000 people are in jail. On average, approximately one-third of them are there for misdemeanors, but in some cities it is as many as 50 percent.”

State versus Federal Misdemeanor Systems

Before going forward, some foundational information is necessary to set the legal stages: What are misdemeanors? How do they differ from felonies? How do the state and federal misdemeanor systems differ? Why are so many misdemeanors being charged each year? Most people haven’t interacted with federal or state criminal justice systems, so they can get lost on the judicial off-ramps of legal jargon.

State Misdemeanors

Misdemeanors and felonies differ in that the latter involves more dangerous criminal behavior. California, like all states, codifies its penal code according to the elements of a crime and the penalty attached to conviction.

California’s misdemeanors fall into two categories: standard or gross (aggravated). Standard misdemeanors include drunk in public, indecent exposure, petty theft, shoplifting, trespassing, and some vehicle code offenses. This category is punishable by up to six months in a county jail, a fine of up to $1,000, or both.

California misdemeanors in the gross (aggravated) category include domestic violence, driving under the influence (DUI) without injury, driving on a suspended license, prostitution, and violating a restraining order. The maximum punishment for a misdemeanor in this category is 364 days,[1] and the fine can be in excess of $1,000.

Jails are vastly different from prisons. They are under the jurisdiction of counties or parishes within states. Often, more populated counties have multiple jails to retain people charged with misdemeanors who are unable to pay for bail pending the disposition of their cases. From my personal experience, Orange County Jail in Santa Ana, California, was far worse than the state prisons I experienced when it came to housing conditions, food, and safety considerations.

Jail populations are a mixed bag of convicted misdemeanants doing their sentences, defendants awaiting or going through misdemeanor or felony trials (including violent crime allegations), and others wallowing in the system because they cannot afford bail.

Penalties for felony convictions in most states are set at one year or more of confinement. These sentences are served in state prisons.

Federal Misdemeanors

According to Ayotte Carmichael Ellis and Brock, PLLC, “Federal misdemeanors occur when a crime is either a federal offense itself [a violation of federal, not state, law], or it is a state misdemeanor committed on federal property.” The sentences for federal misdemeanors range from up to five days (for an infraction) to twelve months of imprisonment.[2] There are no jails per se in the federal system. The federal system imprisons both misdemeanants and felons. U.S. magistrate judges who have the power to sentence up to twelve months hear misdemeanor cases—not federal judges appointed by Congress.

Federal misdemeanors are charged either by the Code of Federal Regulations, which means it is a substantive federal crime, or through the Assimilative Crimes Act, 18 U.S.C. § 13. [This act] states that “state law [is] applicable to conduct occurring on lands reserved or acquired by the federal government . . . when the act or omission is not made punishable by an enactment of Congress.” Some common federal misdemeanors can include:

  • Speeding on the George Washington Memorial Parkway
  • Running a stop sign at the Pentagon
  • Possession of marijuana [in a national park]

The federal misdemeanor system does not incarcerate misdemeanants in facilities called jails. The terminology is different. People convicted of federal misdemeanor crimes are housed in government and private federal correctional institutions that are usually situated adjacent to military bases and serve the labor needs of the base.

The Homeless Factor

Why are so many misdemeanors being charged each year?

According to the National Law Center on Homelessness & Poverty (NLCHP), homeless people are living in nothing short of a national crisis

affecting millions of people each year, including a rising number of families. [These people exist in a world parallel to mainstream society.] Homeless people, like all people, must engage in activities such as sleeping or sitting down in order to survive. Yet, in communities across the nation, these harmless, unavoidable behaviors are treated as criminal activity under laws that criminalize homelessness.

Professor Natapoff’s book Punishment without Crime, subtitled How Our Massive Misdemeanor System Traps the Innocent and Makes America More Unequal, illustrates the scope of the problem and the trap laid for people who, for myriad reasons beyond the scope of this blog, find themselves desperate for a humane hand up. Natapoff states that

On any given night, over 600,000 in the United States have nowhere to sleep; 1.6 million American children are homeless.[3] The misdemeanor system has become a frontline mechanism for managing this state of affairs as a criminal rather than a social welfare program.

The executive summary of the NLCHP report states the problem soberly with the weight of people’s basic life needs:

Imagine a world where it is illegal to sit down. Could you survive if there were no place you were allowed to fall asleep, to store your belongings, or to stand still? For most of us, these scenarios seem unrealistic to the point of being ludicrous. But, for homeless people across America, these circumstances are an ordinary part of daily life.

Reading the NLCHP study is a good way to feel the broad scope of the homelessness problem. Its findings are extensive; its findings are sobering. Here are some political (curable) reasons that struck me:

  •  The prevalence of laws that criminalize homelessness:
    • Laws prohibiting “camping” in public
    • Laws prohibiting sleeping in public
    • Laws prohibiting begging in public
    • Laws prohibiting loitering, loafing, and vagrancy
    • Laws prohibiting sitting or lying down in public
    • Laws prohibiting sleeping in vehicles

In Orlando, Florida, it is even prohibited to give food to groups of homeless people without a permit.[4]

  • Over 12.8% of the nation’s supply of low-income housing has been permanently lost since 2001, resulting in large part, from a decrease in funding for federally subsidized housing since the 1970s.
  • There are fewer available shelter beds than homeless people in major cities across the nation.
  • Despite a lack of affordable housing and shelter space, many cities have chosen to criminally punish people living on the street for doing what any human being must do to survive, [such as eating].

The report continues: “Eating is essential to life”; we need food to live. At this basic level of human need, cities’ power over the powerless can become obscene. The NLCHP rightfully lambasts those cities that

have chosen to restrict homeless persons’ access to food under the flawed premise that providing homeless persons with free food encourages them to remain homeless. Moreover, there is unfounded concern that access to free food services attracts homeless people to the service area, increasing crime and negatively affecting the aesthetic of a neighborhood.[5]

Is this really what this country represents—exposing people and organizations, often faith-based organizations, to fines or criminal liability for feeding populations of poor and homeless people?

The report goes on to say this:

Criminalization laws violate international human rights law. In 2012, the U.S. Interagency Council on Homelessness (USICH) and the U.S. Department of Justice (DOJ) agreed, in a major joint report, Searching Out Solutions: Constructive Alternatives to the Criminalization of Homelessness. The agencies noted that, in addition to raising constitutional issues, criminalization of homelessness may “violate international human rights law, specifically the Convention Against Torture and the International Covenant on Civil and Political Rights.”[6] Since then, the USICH has repeatedly addressed criminalization as not only a domestic civil rights violation, but as a human rights violation. USICH sets forth these three key reasons why it is important to address criminalization from a human rights perspective:

  1.  Housing is a human right. . . .
  2.  Human rights put people first. . . .
  3. Homelessness has expansive human cost. . . .

Race

Racial disparity is an empirical example of misdemeanor jurisprudence gone wild. Racism illustrates the inequity of the criminal justice system.

Natapoff synopsizes the racial data this way:

National arrest rates, generally high, are higher for minorities. By age twenty-three, 38 percent of white men, 44 percent of Latino men, and 50 percent of African American men can expect to be arrested at least once. Every year, police stop 12 percent of all drivers but [they stop] 24 percent of minority drivers.

Racism emerges even without the homelessness factor by way of the race excuse. In April 2018, two African American men were arrested in a Philadelphia Starbucks while waiting for a friend. When the manager asked them to leave because they weren’t buying anything, they said they were waiting for a colleague to arrive. Not satisfied with their explanation, the manager called the police and had them arrested, which led to the “closing [of] more than 8,000 stores on May 29, [2018,] to conduct racial bias training for 175,000 employees.” If Starbucks can act appropriately to the malfeasance of its workers, why can’t governments? (Is it lack of profit motive?)

Treating Social Problems as Crimes Makes for Awkward Ordinances and Consequences

I recently walked around San Francisco with a friend, and we saw pockets of people living in desperation. Their rolling up in anything bendable to ward off the elements, sleeping on cement, nestling near steam exhaust pipes, and holding signage declaring their desperation cries out for government intervention in what is truly a national emergency.

The politically progressive city that it is, coupled with balancing the rights and conveniences of the nonhomeless and poor, spawned an ordinance showing how the use of rules and laws to try the impossible—legislate away the basic survival needs of people—fails to address the core reasons for homelessness, poverty, and hunger.

A San Francisco police department notice about public interaction with the homeless provides the following information:

San Francisco Municipal Police Code Section 25 states that no person shall willfully remain upon any private property or business premise after being notified to leave by the owner, lessee, or other person in charge. Notice may be oral or in the form of a written notice posted in a conspicuous place. The first violation is an infraction; a second within 24 hours is a misdemeanor.

The code essentially deputizes all adults in San Francisco to enforce the law by specifically authorizing citizen’s arrests of homeless people. Police officers cannot make arrests for misdemeanors they do not personally witness (this is different for felonies), but a citizen’s holding a homeless person until a police officer arrives to vicariously make the arrest through the citizen is permissible.

The notice continues:

Property or business owner should contact their district station for postings of 25 MPC Placards (every six months, color-coded) so that officers on patrol can take immediate enforcement action when someone violates this provision and current signs are posted.

The postings serve as a perpetual notice to English speakers who can read the signs; therefore, no oral warning is required.

Conclusion

The question that remains is what are the possible constructive alternatives to criminalizing being homeless and poor? My next post will address ways money and vision can make significant changes in how this population can be serviced in a national health approach. I will also look at how communities can be proactive in combating the problems in their midst that are causally connected to homelessness and poverty. Finally, I will examine how trapdoor justice, for even a short time in jail, can be a life sentence.

Further Reading

For more information on this subject, check out the following:

Your comments and suggestions are always welcome.

Image courtesy of 123rf.com


[1] California Penal Code 18.5. “As of January 1, 2015, the maximum sentence for a California misdemeanor is 364 days. . . .This prevents a misdemeanor crime involving moral turpitude from being a ‘deportable offense’ under U.S. law,” because the sentence served is less than one year.

[2] Sentencing for federal misdemeanor offenses are sorted by class: “class A misdemeanors are punishable by up to 12 months imprisonment, class B misdemeanors are punishable by up to six months imprisonment, [and] class C misdemeanors are punishable by up to 30 days imprisonment.

[3] No Safe Place: The Criminalization of Homelessness in U.S. Cities (Washington, DC: National Law Center on Homelessness and Poverty, 2014), 12–13.

[4] Orlando Ordinance section 18A.09-2: “The law was first passed in 2006, after local residents claimed that [the organization] Orlando Food Not Bomb’s twice-daily homeless feeding was becoming disruptive.”; see Los Angeles Municipal Code Section 41.18(d) “No person shall sit, lie or sleep in or upon any street, sidewalk or other public way.”

[5] U.S. Interagency Council on Homelessness, Searching Out Solutions: Constructive Alternatives to the Criminalization of Homelessness (2012), hearinafter Searching Out Solutions.

[6] Searching Out Solutions, supra note 41, at 8.

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