WSJ Online: "A Surprising Portrait of the Misdemeanor Criminal"

As Proposition 47, the Reduced Penalties for Some Crimes Initiative (2014), is implemented in California, this opinion (recently published in the Wall Street Journal) sheds light on the needs of misdemeanor offenders and opportunities to divert individuals away from the criminal justice system, and into social services, through court interventions.

The author, Greg Berman, is the director of the Center for Court Innovation, a nonprofit organization that conducts research and operates model projects such as the Red Hook Community Justice Center.


A Surprising Portrait of the Misdemeanor Criminal
By Greg Berman

The John Jay College of Criminal Justice released a report at the end of October documenting the rise of misdemeanor arrests in New York City since the 1980s. The timing of the report was fortuitous. The city’s policy makers, academics and advocacy groups are in the midst of a spirited debate over the merits of broken-windows policing—a philosophy that suggests police can help prevent crime by addressing low-level disorder.

To proponents, broken windows is not just the linchpin of New York’s miraculous public-safety improvements over the past generation. It is one of the foundations of civilized society: If we do not care for the physical appearance of our city or attempt to promote civil behavior among its inhabitants, we court chaos.

Critics of broken windows point to the collateral damage that accompanies low-level law enforcement—citing thousands of New Yorkers exposed to criminal convictions, potential incarceration and negative long-term consequences like exclusion from public housing and diminished job prospects.

Opponents of broken windows tend to focus on one segment of the misdemeanor population. A recent piece by Michael Greenberg in the Nov. 6 New York Review of Books is typical. Highlighting a 17-year-old student apprehended for possessing the remnants of a joint, Mr. Greenberg writes: “By an overwhelming majority, New Yorkers who are arrested for low-level infractions . . . are young black and Hispanic men in poor neighborhoods. Often these arrests have been for possessing tiny amounts of marijuana . . . police saddle thousands of young men with criminal records for an offense that the state has largely decriminalized and that white people regularly commit with impunity.”

There are thousands of people who fit this description. The John Jay College report highlights that the rate of misdemeanor arrests for black men between the ages of 18 and 20 in New York City almost tripled between 1990 and 2013—rising to more than 20,000 arrests per 100,000 people from fewer than 8,000 per 100,000.

But this is an incomplete portrait of the misdemeanor population. The John Jay study documents that half of the misdemeanor arrests in New York City are a direct response to complaints or involve more serious misdemeanor offenses such as domestic violence, theft or weapons possession.

In an effort to better understand all this, the Center for Court Innovation is conducting a study that has involved interviewing nearly 1,000 people charged with misdemeanors in Manhattan, Brooklyn and the Bronx. The first thing to note is that most of them are not teens—the average age is 35. They are also not newcomers to the criminal justice system—more than half have prior misdemeanor convictions and more than a third have prior felony convictions.

There’s a saying that misdemeanors aren’t complicated legal cases, but they are committed by people with complicated lives. The data underline this truth. This is a population with serious problems and multiple needs. More than half of our sample reported being unemployed, and nearly one in two said they use drugs daily. Mental health issues abound. The prevalence of trauma was staggering. More than half of the sample reported having witnessed a shooting or other violent event. One in four reported having experienced physical, emotional or sexual abuse. Nearly 20% said they had attempted suicide.

The emerging research suggests several new directions for the criminal-justice system. First, there are opportunities to divert out of the system thousands of New Yorkers who have been apprehended for quality-of-life offenses such as marijuana possession or transportation-fare avoidance. These opportunities should be seized—either by not making formal arrests or by increasing the use of pretrial diversion programs for young people and those who have committed a single infraction or two. When interacting with these and other populations on the streets, the police should take pains to explain their decisions clearly and to treat individuals with dignity and respect; research suggests this will promote law-abiding behavior in the long run.

But the research tells us that many people accused of misdemeanors come to the justice system with more serious issues than occasional marijuana use. Yet there are opportunities for reform here, too. Instead of using jail as a default, courts can be much more aggressive in linking misdemeanor offenders to drug treatment, job training and mental-health counseling, for instance, addressing the kinds of problems that lead to more criminal behavior.

There is already solid evidence that this can make a difference. The Red Hook Community Justice Center was created in 2000 to expand the use of alternatives to incarceration for misdemeanor offenders in southwest Brooklyn. Each year the center links thousands of defendants to social services and community restitution projects in lieu of jail. An independent evaluation in 2013 by the National Center for State Courts documented that the project reduced the number of defendants receiving jail sentences by 35%. Over a two-year study period, adult defendants handled at the Justice Center were 10% less likely to commit new crimes than offenders who were processed in a traditional courthouse. Juvenile defendants were 20% less likely to re-offend.

The reductions in felony crimes over the last 30 years have been hailed around the world as “the New York miracle,” and credited with reducing fear and improving economic development. Today we are experiencing an ancillary benefit: The decline of felonies has created breathing room to give misdemeanors and the people who commit them the focus they deserve.