After decriminalization of traffic offenses, jaywalking, advocates push to reform vast misdemeanor system
In the wake of Nevada lawmakers decriminalizing minor traffic offenses and jaywalking, criminal justice reform advocates have set their sights on a new goal — downgrading other misdemeanors to civil infractions and addressing consequences associated with the misdemeanor system.
Misdemeanors are considered the lowest-level crimes, behind felonies and gross misdemeanors, and can result in an individual being sentenced to up to six months in jail, fined up to $1,000, or both — for anything ranging from feeding pigeons to domestic violence battery. While some misdemeanors such as provoking assault have lesser fines that are enumerated in state law, the Supreme Court ruled in 2001 that police may arrest and jail individuals for any misdemeanor even without a warrant.
Advocates have drawn parallels between misdemeanors and racist practices dating back to Reconstruction – a turbulent era of the reintegration of the Confederate states into the United States and formerly enslaved people into society after the Civil War – and said lawmakers and officials need to reevaluate what is considered a misdemeanor.
“We need to start thinking about how we think about misdemeanors,” said Leisa Moseley, Nevada state director of the Fines and Fees Justice Center. “The purpose of this misdemeanor system, how much revenue it generates, how it catches people up in the system, and why are we even … allowed to arrest people for such what we consider minor infractions.”
Changing misdemeanors to civil infractions would mean police officers would issue citations rather than attempting to arrest people and get them in a police car. Eve Hanan, a professor at the UNLV Boyd School of Law who runs the UNLV misdemeanor clinic that represents people charged with low-level offenses, said doing so would likely reduce sometimes-deadly encounters between people and the police.
Hanan said she believes that had George Floyd been given a citation rather than getting arrested, he might still be alive.
“It was really the decision to put him into the back of the police car that was the start of the chain of events which led to his killing,” Hanan said.
Efforts to scale back the potential consequences of misdemeanors this session faced pushback from critics who say that doing so takes away police officers’ discretion to arrest people as necessary.
Las Vegas Metropolitan Police Department policy prevents officers from making minor misdemeanor arrests unless they are approved by a supervisor, said Chuck Callaway, a lobbyist for the Las Vegas Metropolitan Police Department. Callaway said he “adamantly opposed” AB440 – a bill advanced this year that will require police officers to issue citations for certain misdemeanors that do not constitute repeat offenses, violent crimes “or certain other prohibited offenses under certain circumstances.”
If someone peeks through the window of another person’s house without possessing a deadly weapon or camera and the homeowner calls the police, Callaway offered as an example, the officers can give the person a ticket but can’t make an arrest.
“Oftentimes those crimes elevate to break-ins and to sexual assaults and other types of crime,” said Callaway. “If the bill passed in its original form, basically a citizen would have more police power than a police officer because a citizen under our law can make a citizen’s arrest.”
Yet, advocates continue to push for the decriminalization of minor offenses. One individual was held in custody for 72 hours for feeding pigeons – a misdemeanor charged under the Henderson Municipal Court.
The conversation about rethinking misdemeanors is already under way in Nevada. The Clark County Black Caucus — which has been leading conversations on reforms in Nevada for over a decade — organized a panel discussion and screening hosted at the Mob Museum early this month of a documentary short film about the history of the misdemeanor system and its long-lasting and disproportionate harms on Black, brown and low-income people in the United States.
The film, Racially Charged: America’s Misdemeanor Problem, points to similarities between Black codes in the 19th century – restrictive laws designed to limit the freedom of African-Americans and to ensure their availability as a cheap labor force after slavery was abolished – and modern-day misdemeanors.
Black codes attached big penalties to minor or made-up offenses – such as being drunk in public, walking alongside the railroad tracks and being homeless – and were almost exclusively enforced against African-American people, Paul Butler, a Georgetown law professor and author of Chokehold, says in the film.
During the Reconstruction era, many newly freed enslaved people were able to make significant achievements “that really threatened white supremacy,” Irene Joe, a University of California Davis law professor and co-author of When Every Sentence Is A Possible Death Sentence, said in the film.
Others in the film argue governments created Black codes to earn a profit and to create a steady source of cheap or free labor after the abolition of slavery.
“For these governments to sell prisoners into slavery, you first have to arrest lots of people,” Douglas Blackmon, Georgia State University Professor and author of Slavery By Another Name, said in the film. “There’s a big problem with that, though. There’s just not enough crime for this system to work and for it to be profitable. The state governments of the South had to invent new crimes.”
The film compared the historical example of John Owen, a Black man who was sentenced under the Black codes to perform convict labor for two years taking six ears of corn and a third year for the court costs with the modern-day example of Faylita Hicks, who spent 45 days in jail for using a bounced check for $25 worth of food during a period of homelessness in 2010.
“It hurt me for 10 years, and it completely disrupted my life, and I have been trying to figure out how to get my life back on track,” Hicks said in the film.
A treadmill of fines and fees
The Legislature took a major step this year to take certain misdemeanors off the book with AB116, a bill which allows minor traffic offenses to be charged as civil infractions rather than crimes. Once the bill takes full effect in 2023, people cannot be arrested for certain low-level offenses, or for missing payment of a fine or failing to appear in court for such a citation.
But the bill does not prevent those fines, nor the slew of fees that may come with them, from accumulating and putting people unable to pay them into debt. Those expenses include court costs, administrative assessment fees, cash bail deposit, and more.
One woman who moved from Chicago to Las Vegas in 2006 received $4,431 in ticket fines that were raised to more than $20,000 with additional fines and fees, according to data analyzed by the UNLV Misdemeanor Clinic that recently helped her. Such fines and fees can have long-lasting consequences.
“It takes away people’s livelihood[s]. It limits who can get employment in many cases,” Moseley said. “If you got a misdemeanor conviction, you have to report that if you’re trying to get into law school, if you’re trying to get into medical school.”
Advocates hope to tackle some of the pitfalls people face as they try to respond to a misdemeanor charge.
In 2019, Nevada lawmakers passed AB434 – a bill that required courts to perform ability-to-pay assessments and to offer community service or a payment plan for those unable to pay a traffic fine. But it is unclear whether such assessments are being applied uniformly across the state and whether people are consistently being offered the opportunity to perform community service if they are unable to pay, Moseley told lawmakers earlier this year.
Individuals who say they cannot pay fines and fees associated with misdemeanors are required to appear in court so a judge can determine whether they are truly unable to pay or whether they purposefully did not pay.
All too often, people who cannot pay fines and fees try to stay away from the court until they have the money to pay, Hanan said. But, if they miss the payment due date, a warrant goes out for their arrest and they can be incarcerated until they go before a judge to argue that they were unable to pay, Hanan added.
“You’ll eventually get released but, you know, it only takes a day or two to lose your job and to have your children in [a] situation you don’t want to be in,” Hanan said.
And sometimes people are unable to commit to community service or to making payments according to a court-ordered payment plan, which comes with an additional fee just to enroll and that can range from $50 to $150, according to Moseley.
That was the case for Leslie Turner, head of the Mass Liberation Project criminal justice reform initiative. She owed fines for traffic tickets in 2015, but was unable to perform the manual labor community service options available to her because she was pregnant. After giving birth to a premature baby boy, she had to stop working and was unable to make the payments on her plan.
Nguyen and Moseley are working together to pass a bill for the next legislative session that would make the definition of community service more flexible. Texas, for example, allows people to choose from a wide range of community service options including volunteering at a nonprofit organization or at a school.
Individuals are charged fees if they miss a payment or submit a late payment, which can add up. Under Nevada law, a person can spend time in jail instead of paying fines and fees. One day in jail counts for $150.
“If they just simply cannot pay, for non-willful failure to pay, there are many people out there who have elected to spend several days to a week or more in jail in order to eliminate, to be done with the fines and fees that they owe to the court,” Hanan said.
Some people get trapped in the system of accumulating debt from unpaid fines and fees associated with misdemeanors because they do not understand the intricacies of the legal system.
Individuals who are unable to pay for an attorney are entitled to a public defender, but there is a caveat: To qualify, they must be facing jail time. If the prosecutor is not seeking jail time, the judge will charge the individual fines and fees, and the individual is expected to pay or negotiate those fines and fees on their own.
The UNLV Misdemeanor Clinic that Hanan runs with law Professor Anne Traum represents clients who are struggling with debt from criminal justice fines and fees but are not eligible for a public defender — free of charge.
Nguyen said she is working on clarifying in Nevada law all the fines and fees imposed for civil infractions.
Much of the revenue from these fines and fees goes to fund local courts. But money collected for fees such as administrative assessment fees – additional costs assessed against each defendant and that are enumerated in Nevada law – are used to fund specialty courts such as DUI courts, drug courts and youth offender courts.
Advocates have criticized local governments’ reliance on criminal justice fines and fees. Although data on where fines and fees associated with misdemeanors go in Nevada is limited, the Fines and Fees Justice Center released a report showing that Nevada has consistently raised administrative assessment funds over the past two decades.
In 1987, the Legislature raised administrative assessment funds from $10 to $100 to fund an expansion and upgrade of technology. The fee first was introduced in 1983 when Congress cut approximately $40 billion from its budget, causing states to scramble for alternative ways to fund their justice systems.
Nguyen is optimistic about implementing more legislation to decriminalize more misdemeanors. Because AB116 requires courts in Nevada to create a civil infractions system, they will already have a system in place to address misdemeanors that lawmakers change to civil infractions.
Nguyen attributes this year’s passage of AB116 – after four unsuccessful attempts to decriminalize minor traffic offenses – to her conversations with people working in the criminal justice system such as members of the courts and police officers.
“Sometimes, you think that you’re in opposition to them and it turns out, you actually want the same thing,” Nguyen said.
She said she spoke with district attorneys who have historically been in opposition to the measure, asked them what she could do to get them on board, had them speak to Moseley and provided them with evidence of its success in other states. She said she plans to do the same when it comes time to discuss decriminalizing more misdemeanors.
“I think that helps bring people in to realize …. this change is not so scary. It’s needed. It’s necessary and it’ll actually make things better for you,” Nguyen said.
Reporter Michelle Rindels contributed to this report.
This story was updated at 1:20 p.m. on Monday, Aug. 16, 2021 to reflect that the film screening was organized by the Clark County Black Caucus.