After decriminalization of traffic offenses, jaywalking, advocates push to reform vast misdemeanor system

Nevada lawmakers have decriminalized minor traffic offenses and jaywalking. Now, criminal justice reform advocates have set their sights on a new goal. They want to downgrade other misdemeanors to civil infractions and address consequences associated with the misdemeanor system.

What the misdemeanor system covers

Misdemeanors rank as the lowest-level crimes, behind felonies and gross misdemeanors. They can result in a sentence of up to six months in jail, a fine of up to $1,000, or both. These penalties apply to anything ranging from feeding pigeons to domestic violence battery.

Some misdemeanors, such as provoking assault, have lesser fines that state law lists. However, 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. Reconstruction was a turbulent era of the reintegration of the Confederate states into the United States and formerly enslaved people into society after the Civil War. Advocates also 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.”

Civil infractions and the misdemeanor system

Changing misdemeanors to civil infractions would mean that police officers issue citations. They would not attempt to arrest people and get them in a police car. Eve Hanan is a professor at the UNLV Boyd School of Law. She runs the UNLV misdemeanor clinic, which represents people charged with low-level offenses. Hanan said doing so would likely reduce sometimes-deadly encounters between people and the police.

Hanan said she believes George Floyd might still be alive if officers had given him a citation rather than arresting him.

“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.

Police discretion and the misdemeanor system

Critics pushed back on efforts this session to scale back the potential consequences of misdemeanors. They say that doing so takes away police officers’ discretion to arrest people as necessary.

Chuck Callaway is a lobbyist for the Las Vegas Metropolitan Police Department. He said department policy prevents officers from making minor misdemeanor arrests unless a supervisor approves them. Callaway said he “adamantly opposed” AB440. This bill advanced this year. It 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.”

Callaway offered an example. If someone peeks through the window of another person’s house without possessing a deadly weapon or camera and the homeowner calls the police, 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. For example, one individual spent 72 hours in custody for feeding pigeons. The Henderson Municipal Court charged this misdemeanor.

The film on the misdemeanor system

The conversation about rethinking misdemeanors is already under way in Nevada. The Clark County Black Caucus has been leading conversations on reforms in Nevada for over a decade. Early this month, the caucus organized a panel discussion and screening at the Mob Museum. The screening featured a documentary short film about the history of the misdemeanor system. The film also covers 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 and modern-day misdemeanors. Black codes were restrictive laws designed to limit the freedom of African-Americans and to ensure their availability as a cheap labor force after slavery ended.

Paul Butler is a Georgetown law professor and author of Chokehold. He says in the film that Black codes attached big penalties to minor or made-up offenses. Examples include being drunk in public, walking alongside the railroad tracks and being homeless. Enforcement fell almost exclusively on African-American people.

Black codes and Reconstruction in the film

During the Reconstruction era, many newly freed enslaved people made significant achievements “that really threatened white supremacy,” said Irene Joe in the film. Joe is a University of California Davis law professor and co-author of When Every Sentence Is A Possible Death Sentence.

Others in the film argue governments created Black codes to earn a profit. They also argue the codes created 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.”

Historical and modern examples

The film compared a historical example with a modern-day example. John Owen, a Black man, received a sentence under the Black codes to perform convict labor for two years for taking six ears of corn, and a third year for the court costs. The modern-day example is Faylita Hicks. She 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 in the misdemeanor system

The Legislature took a major step this year to take certain misdemeanors off the book with AB116. This bill allows minor traffic offenses to become civil infractions rather than crimes. Once the bill takes full effect in 2023, police cannot arrest people for certain low-level offenses. They also cannot arrest people for missing payment of a fine or failing to appear in court for such a citation.

But the bill does not prevent those fines from accumulating. It also does not prevent the slew of fees that may come with them. These costs can put people who are unable to pay into debt. Those expenses include court costs, administrative assessment fees, cash bail deposit, and more.

One woman moved from Chicago to Las Vegas in 2006. She received $4,431 in ticket fines. Additional fines and fees raised that amount to more than $20,000, according to data the UNLV Misdemeanor Clinic analyzed. The clinic 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.

Ability to pay and community service

In 2019, Nevada lawmakers passed AB434. This bill 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. However, it is unclear whether courts apply such assessments uniformly across the state. It is also unclear whether courts consistently offer people 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 must appear in court. There, a judge determines 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, Hanan added. Then they can sit in jail until they go before a judge to argue that they were unable to pay.

“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.

Payment plans and the misdemeanor system

And sometimes people are unable to commit to community service or to making payments according to a court-ordered payment plan. According to Moseley, the plan comes with an additional fee just to enroll, and that fee can range from $50 to $150.

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. However, she 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. These options include volunteering at a nonprofit organization or at a school.

Individuals owe 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 fall into a system of accumulating debt from unpaid fines and fees associated with misdemeanors. They do not understand the intricacies of the legal system.

Public defenders and where the fees go

Individuals who cannot afford an attorney can have a public defender, but there is a caveat. To qualify, they must face jail time. If the prosecutor is not seeking jail time, the judge will charge the individual fines and fees. Then the individual must pay or negotiate those fines and fees on their own.

Hanan runs the UNLV Misdemeanor Clinic with law Professor Anne Traum. The clinic represents clients free of charge. These clients struggle with debt from criminal justice fines and fees but do not qualify for a public defender.

Nguyen said she is working on clarifying in Nevada law all the fines and fees that apply to civil infractions.

Where the fines and fees go

Much of the revenue from these fines and fees goes to fund local courts. However, administrative assessment fees fund specialty courts such as DUI courts, drug courts and youth offender courts. These fees are additional costs against each defendant. Nevada law lists them.

Advocates have criticized local governments’ reliance on criminal justice fines and fees. Data on where fines and fees associated with misdemeanors go in Nevada is limited. However, 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 appeared in 1983, when Congress cut approximately $40 billion from its budget. This cut caused states to scramble for alternative ways to fund their justice systems.

Building consensus on the misdemeanor system

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 to her conversations with people working in the criminal justice system, such as members of the courts and police officers. The bill passed after four unsuccessful attempts to decriminalize minor traffic offenses.

“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 opposed the measure. Nguyen asked them what she could do to get them on board. She also had them speak to Moseley and provided them with evidence of its success in other states. Nguyen 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.

Read the original article here.

Key takeaways

• First, advocates want to downgrade other misdemeanors to civil infractions.
• Next, a misdemeanor can bring up to six months in jail, a fine of up to $1,000, or both.
• Also, AB116 lets minor traffic offenses become civil infractions, but fines and fees can still pile up.
• In addition, critics say that scaling back misdemeanors takes away police officers’ discretion.
• Finally, Nguyen says conversations with courts and police helped AB116 pass, and she plans to do the same for more misdemeanors.

Learn more about misdemeanors on Wikipedia.

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• Racially Charged: America’s Misdemeanor Problem • Full Documentary. It features a documentary that exposes how a history of racial injustice evolved into an enormous abuse of criminal justice power.
• Las Vegas Cops Search Car and act Tyrannical: Delete Lawz Law Scholar Schools The on Laws. It covers Las Vegas police searching a car for making a u turn.
• Daytona Beach Officer Fired After Review of Video Showing Beating of Handcuffed Citizen. It covers an officer fired after a review of video.