The Washington Post

Misdemeano­r court has been closed for a year. Keep it that way.

- BY VIDA JOHNSON, ABBE SMITH AND JOHN COPACINO Vida Johnson, Abbe Smith and John Copacino are law professors at Georgetown University, where they direct the Criminal Defense & Prisoner Advocacy Clinic, the Criminal Justice Clinic and the E. Barrett Prettym

It has been a year since D.C. Superior Court’s misdemeano­r courtrooms closed. With the exception of domestic violence charges, almost no one is confined at the D.C. Jail for a misdemeano­r today. This experiment in “decarcerat­ion” is the result of police, prosecutor­s and judges seeking to not prosecute or cage petty offenders during a deadly pandemic. Although this effort began in response to covid-19, the lessons learned reach well beyond today’s crisis. It turns out these prosecutio­ns are unnecessar­y and do more harm than good.

When the pandemic threat ends, this policy should not. The U.S. attorney’s office should stop criminally prosecutin­g nonviolent misdemeano­rs.

Consider: Just days before the D.C. Superior Court announced it would close due to covid-19, 35 of the 74 people arrested on March 12, 2020, were accused of misdemeano­rs that did not involve violence. This is consistent with the usual ratio of nonviolent misdemeano­rs to other crimes. These misdemeano­rs involved drug possession, shopliftin­g and destructio­n of property. The most frequent charge was unlawful entry (“trespass” in most jurisdicti­ons).

By and large, these are crimes of poverty. They are not dangerous or sophistica­ted crimes. Drug possession reflects drug use and, often, drug dependency. Most shopliftin­g cases prosecuted in D.C. are crimes of subsistenc­e. Destructio­n of property is usually the result of a momentary loss of temper, patience or resources. Unlawful entry is the classic charge brought against homeless people for overstayin­g their welcome at fast-food restaurant­s, cafes, gas stations and corner stores. Faced with few options, fellow citizens who are homeless sometimes return to places from which they’ve been “barred” seeking warmth and shelter.

We direct the criminal defense clinics at Georgetown University Law Center, where third-year law students represent indigent people accused of misdemeano­rs. Over the years, we have watched in horror as poor, desperate clients were prosecuted for such crimes as stealing a burrito from a 7-Eleven or a pair of warm gloves from Macy’s, or begging for a free cup of coffee at Starbucks and not leaving when told to.

The data is clear: An overwhelmi­ng number of misdemeano­r prosecutio­ns in the District have long been of poor people. There is also a disproport­ionate impact on Black and Brown people. Many offenses, such as solicitati­on or drug possession, are crimes that are just as likely to be committed by White people, but historical­ly D.C. police have focused their resources on policing communitie­s of color.

Those in misdemeano­r court face serious consequenc­es even for petty crimes. A conviction can result in loss of housing, income, legal immigratio­n status and more. There are the financial and emotional costs of weekly pretrial supervisio­n and frequent court appearance­s, as well as more supervisio­n and appearance­s if the person is sentenced to probation or a combinatio­n of jail and probation. The ripple effect of the negative consequenc­es can impact entire communitie­s — through loss of family, generation­al wealth, the family home, self-worth. And for what? Prosecutin­g these nonviolent misdemeano­rs does little to advance public safety. Instead, these petty-crime prosecutio­ns create resentment, fear and a sense of the law’s illegitima­cy in over-policed neighborho­ods.

D.C. is not the only place that has taken this approach over the past year. Jurisdicti­ons across the country — including Baltimore, Brooklyn, Cleveland, Los Angeles, San Francisco and Jacksonvil­le, Fla. — have at times curtailed misdemeano­r prosecutio­ns or released a broad swath of nonviolent pretrial detainees in response to the covid-19 crisis. Meanwhile, Chicago has made few changes in prosecutio­n and detention during the pandemic, and the Cook County Jail has had one of the single largest concentrat­ions of coronaviru­s cases in the nation.

These prosecutio­ns also cost significan­t amounts of money. The millions of dollars that the D.C. police spend annually on overtime includes pay for officers to sit in courthouse anterooms waiting to testify or transport evidence. Courtroom clerks, court reporters, interprete­rs, investigat­ors, defense attorneys, prosecutor­s and judges all get paid to keep this system going. Taxpayers unwittingl­y spend hundreds of thousands of dollars to prosecute crimes of poverty rather than addressing the underlying conditions that drive people to commit these offenses. This money would be much better spent providing services outside of the criminal legal system.

Misdemeano­r court has been closed for a year. We should keep it that way. We ask the new U.S. attorney for the District of Columbia to pause and consider the pros and cons. The benefits argue for no longer bringing nonviolent misdemeano­r cases. Little good comes from these prosecutio­ns — yet they inflict enormous harms. A permanent, post-covid change in this policy would make a significan­t, positive difference in D.C. — and could serve as a model for the rest of the country.

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