It’s time to make smarter choices on small crimes

With the midterm election mostly past, it’s promising to see that many candidates with progressive, pro-safety views on crime won office; notably, John Fetterman (D-Pa.) — who was attacked for his stance on clemency, safe injection sites, and reducing prison populations — soundly defeated his lock-’em-up opponent, Dr. Mehmet Oz. But the good news for public safety did not stop there.

There were a plethora of surprising races where people with smart ideas about crime and safety beat out folks clinging to the mantra of “tough on crime”: two sheriff races in Massachusetts (including one where the “Arpaio of the East” bit the dust); decarceral prosecutors winning in Austin, Minneapolis, and Des Moines, and Kenneth Mejia’s anti-police-spending billboards winning the day in Los Angeles. 

Reflecting back on the barrage of crime-focused political ads, there is a striking messaging gap: nearly universally, the public discourse focused on serious, violent felony crime (think gun violence and homicide), when in reality, the vast majority of crime facing this country is small potatoes: about 80 percent of court cases are misdemeanors.

It’s time for lawmakers to wake up and act on the facts rather than on political advertising narratives.

I saw this firsthand as a public defender in the Bronx, during which arraignment shifts were one of my favorite parts of the job. In one day — or night — I would meet dozens of people, all facing the same terrible prospect of criminal accusation, and, often, I would be able to help make things better. The vast majority of the people I would meet were there for small things: driving without a license, drug possession, or shoplifting. Almost always, it was the kind of low-level matters that made easy arrests but had little impact on public safety.

This isn’t by chance — a new study out this year suggests that this isn’t random: the more we increase police presence, the more we increase arrests for low-level crime.

That court docket full of misdemeanors equates to about 13 million people. 

What’s more, about three-quarters of those cases will never result in a conviction,

Yet they do incredible harm to people’s lives. An arrest, sometimes in front of one’s own children or the whole neighborhood, is a humiliating, traumatizing, and potentially lethal process. What happens after arrest is equally dangerous: entry into the horrors of the jail system, where disease and violence remain rampant, safety and medical care scarce, and access to loved ones and support systems next-to-non-existent. 

Small time cases can linger for months, if not years, subjecting people to the continual disruption of court requirements: missing work, missing school, missing medical appointments, struggling to find child care, spending all day in a formal courtroom where one is not allowed to speak, read, or even look at a phone. Layoffs and firings often follow. 

The cumulative cost of lower earnings due to criminal records in the U.S. is about $370 billion annually.

There is a simple question that we as citizens do not ask enough: Why?

Why do we do this to people? Why do we believe that criminal court is the best way to address minor harm? Again and again, research into the subject of what causes crime has demonstrated that pre-trial jailing causes more crime than it prevents.

Think about that: The jailing we think keeps us safe, in fact has no deterrent effect but actually causes more crime. Suggestions to increase police are, in fact, more likely to spur this cycle of low-level arrests and jailing. 

The things that diminish crime, on the other hand, have little to do with punishment. Housing, income, and access to care are the factors consistently cited as vital to safer communities. Higher wages, youth job programs, basic income pilots, strong social safety net programs, the availability of affordable housing, and healthcare coverage are all shown to lower crime — and violent crime in particular.

Americans are beginning to recognize that punishment is not a fix-all system. This has led to tremendously successful pilots using social work teams in lieu of police in certain cases. In my own work, empowering public defenders to provide stabilizing care has eliminated an estimated 1.4 million days of incarceration since 2018 and is currently connecting thousands of people with housing, employment, healthcare, education, and benefits support every year. 

Yet the midterms showed us that the go-to public policy choices for many candidates stand in stark contrast to what the research tells us we should be doing. Instead of asking how to reduce those misdemeanors clogging 80 percent of the legal system, we hear calls to invest in misdemeanor-heavy policing that will only further jam up the courts. It’s not just campaigns; past policy choices have created an imbalance in precisely the wrong direction — for example, there are reports like this one from the California Legislative Analyst’s Office showing that the state gave almost $1 billion more in funding to prosecutors than defenders in 2018.

It doesn’t have to be this way.

Lawmakers are empowered to move cases out of the criminal system, to expand diversion, to address most misconduct with resources and support instead of counterproductive punishment mechanisms, and, frankly, to simply route the majority of low-level arrests out of the criminal legal system entirely, removing minor misconduct from the penal code and shifting instead to citations and sliding-scale civil penalties. The data is clear, and it’s time for our lawmakers to start acting on it.

Emily Galvin-Almanza is the co-founder and Executive Director of Partners for Justice, a new model of collaborative public defense designed to empower public defenders nationwide. Prior to founding PFJ, she worked as a public defender in both California and New York. Follow her on Twitter @GalvinAlmanza