Misdemeanor Offenses: Minor Conduct, Major Consequences
The Misdemeanor System, Defined
As criminal justice reform again takes center stage in Virginia, much of the focus is often paid to more serious offenses. The misdemeanor offense system tends to be overlooked in these efforts, despite being the part of our courts most ripe for reform. A misdemeanor is a criminal offense punishable in Virginia by a fine up to $2500 or jail time up to 12 months.
In Virginia, misdemeanors cover a wide range of offenses, from Class 1 (most serious) to Class 4 (least serious). One end of the spectrum includes potentially serious offenses, such as domestic abuse or drunk driving. On the other end, you find petty offenses like public intoxication, trespassing, and disorderly conduct, where the underlying behavior is not particularly harmful or dangerous.
Case Volume and Pressure for Guilty Pleas
Approximately one in three Americans has a criminal record. It is estimated that misdemeanors comprise approximately 80% of all arrests and 80% of state dockets, based on arrest data from the FBI and other reports. In other words, most Americans experience criminal justice through the petty offense system. With 13 million misdemeanor cases filed every year, judges, prosecutors, and defenders are often overrun with caseloads. The easiest way to get through that caseload is to resolve cases by plea deals, which don’t require a trial. Frustrated and overworked judges sometimes see misdemeanor trials as a waste of time, and therefore punish defendants who are convicted after choosing to have a lengthy trial.
Complicating matters, defendants in busy courts in Virginia often wait 90 days from the time they’re charged to the time of their trial. Virginia still uses secured bond or “money bail” for all levels of offenses, including misdemeanors, meaning some defendants must pay money or otherwise stay in jail until their trial. Other defendants are held without bond for months, despite only being charged with misdemeanor offenses. The current system of pretrial detention for misdemeanor offenses disproportionately harms the poor, who often cannot afford bail, and are forced to wait in jail. The effects of these delays can be life-changing for poor people, resulting in missed work, job loss, eviction, and even losing custody of their children
As a result of these factors, nearly all misdemeanor cases are resolved by plea deals. And while it's typical that felony cases have racial disparities in plea agreements, recent studies have found that racial disparities in plea agreements were even greater in misdemeanor cases. White people facing misdemeanor charges were nearly 75% more likely than Black people to have all charges carrying potential imprisonment dropped, dismissed, or reduced to lesser charges.
Unfortunately for those who get charged with these offenses, Virginia law makes little distinction between misdemeanors and felonies when it comes to what is reflected in criminal records. Virginia has no automatic expungement laws, and convictions are never eligible for expungement. Even if you are found not guilty or the charges are dropped, your charge remains on your record unless they are expunged.
As a result, when a defendant accepts a plea deal, it remains on their record permanently, marking them for life. Even a minor conviction can be a barrier to getting jobs, housing assistance, child custody, immigration status and qualifying for student loans. Virginia’s court system recently made it easier to find these online court records — even for arrests with no conviction — through a new statewide search function. Many accused of misdemeanor offenses have little idea what kind of long-term effect a conviction can have. Others simply don’t feel they have a choice — facing down the immediate harms imposed by continued incarceration, they take whatever alternative they are offered.
Criminalization Based On Race
A common saying goes, “The criminal system doesn’t just go after criminals; it makes and defines them.” This is no less true just because the offense is a misdemeanor. Pretending that the system treats Black and White people equally ignores both empirical data and the lived experience of Black people throughout Virginia.
Policing is often concentrated on low-income communities of color. Recent reports in both Richmond and Charlottesville point to racial disparities in contact with the police. Fairfax County data shows that in 2019, Black people accounted for 18% of traffic stops despite being only 9% of the population. These racial disparities are particularly evident in traffic stops. The recently-passed Community Policing Act will provide data on racial profiling during traffic stops in Virginia beginning in 2021, but transparency is often lacking. This is especially true for traffic stops, which often rely on the police to self-report these data.
As we discussed at more length in our last post, every interaction between police and a Black person carries with it the specter of violence. Black people were the targets for 45% of use-of-force incidents in Fairfax County in 2019. Every few weeks, another case of a Black person being killed by the police as the result of a traffic stop makes the news. Many other cases do not. For these reasons alone, reducing the number of interactions between armed police officers and minority communities is imperative.
A Self-Perpetuating System
Not only do these racial disparities harm Black Americans’ confidence in the police, they also feed a self-perpetuating system. Having a criminal record or a prior arrest changes every aspect of future encounters with the criminal justice system.
For example, police need probable cause in order to charge a suspect with an offense. In theory, an officer’s finding of probable cause and an arrest based on that finding should only apply in the context of the initial events. In reality, previous arrest records may swing a decision in favor of finding probable cause, increasing an individual’s chances of future charges if stopped. Officers often conduct database searches (based on license plates) in deciding whether to conduct a traffic stop or search a vehicle. The difference between the warning given to a White driver and the summons issued to a Black driver has significant downstream effects. The records reflecting earlier bias are used to reinforce that bias going forward. It’s a textbook example of how structural racism operates.
Nor are these reinforcing effects limited to the officer’s decision to stop, search, or arrest someone. The existence of a criminal record, even for non-violent offenses, can prevent defendants from getting bail for subsequent charges. Similarly, prosecutors rely on past criminal records when making future plea offers. This means that if you have a prior misdemeanor conviction, your next felony arrest is more likely to result in a felony conviction. Judges rely on prior criminal record in deciding an appropriate punishment at future sentencings, meaning that your prior misdemeanor conviction can turn a future fine into a jail sentence, or a short jail sentence into a lengthy prison sentence.
Ultimately, the misdemeanor system uses its own biased conclusions to inform future decisions about where and who police should target. It puts minorities at greater exposure to police, increasing opportunity for arrest and use of force.
A System Ripe and Ready for Reform in Virginia
When we use the misdemeanor system to handle lower-level offenses, we perpetuate the belief that we should rely on police and prisons to solve social problems. The more crimes that are on the books the more tools the police have to initiate stops and searches. And the more stops and searches are made, the more racial and financial disparities increase.
A number of reforms could reduce the impact that being accused or convicted of misdemeanor offenses has on Virginians:
Substantially reduce the number of offenses that the police can use to pull someone over. No more vehicle stops for equipment violations, window tint, dangling objects, etc.
Reform the system that routinely holds the accused in jail while we figure out whether or not he’s committed a misdemeanor. Eliminating cash bail is a good idea, but we can also adopt broader pretrial justice reforms that would make it unlawful to hold people accused of most misdemeanors before trial.
Make misdemeanor convictions (if not all convictions) eligible for expungement, so they don’t permanently alter someone’s life upon conviction. Automatically expunge any offense that does not result in a conviction.
We should also continue to look for opportunities to decriminalize behavior wherever possible. The misdemeanor code is packed with offenses that criminalize unwanted but harmless behavior. While misdemeanor offenses may not seem like a big deal, in Virginia their impact is sometimes irreversible.