After the civil war, and after abolition, Southern states repurposed their misdemeanor systems to criminalize and control the African-American labor pool. They arrested them and charged them with minor crimes, punishing them with fines they could not pay in order to lock them up and sell them back to private industry.
The mechanism that they used is one that we still see today, that private industry acted as a surety.
Southern legislatures tried to re-inscribe a form of slavery through a system of laws called black codes. These codes essentially tip the hand of the South with respect to how it’s going to use the criminal justice system over the course of the next century, to coerce black people back to labor.
By creating laws that criminalize and create convictions for Blacks, they were allowed to enslave them again through the practice of convict leasing. Convict leasing allowed plantation owners and in many cases, corporations, to lease incarcerated people from the state government or county government for forced labor.
These new laws specified how, when and where African Americans could work and how much they would be paid. If the specific Black Code could not be proven, victims would be charged with the catchall “vagrancy.”
Common non-violent misdemeanors used today include:
Today, loitering is a police tool of choice. It’s the common go to offense to impose their authority in a neighborhood. Much of that authority is being deployed illegally. Many people are arrested every year for loitering where they’re clearly not engaging in that behavior and the majority of them are people of color.
Misdemeanor Overview in the country
and breakdown of states
There are a few states where misdemeanors carry permissible sentences longer than one year and the court can send an individual to prison rather than jail. In Pennsylvania, a first-degree misdemeanor conviction can result in up to five years in state prison. New Jersey law authorizes a similar sentence for high misdemeanors.
The majority of states have established multiple levels of misdemeanors based on the severity of the offense. Most states have between two and four separate classifications. Nebraska has the most classes of misdemeanors with seven. Nine states have one general classification for misdemeanors.
Five states — Louisiana, Maryland, Massachusetts, Mississippi and West Virginia — don’t have any specific classes. In those states, penalties for misdemeanors are specified for each offense rather than providing one overarching penalty. Louisiana statute, for instance, states that simple battery is punishable by up to six months imprisonment, whereas simple assault is punishable by up to 90 days. In Maryland, the penalty for harassment is up to 90 days imprisonment, while burglary in the fourth degree is a misdemeanor that is subject to imprisonment for up to three years.
The following chart includes states’ maximum misdemeanor classification systems. Classes are ordered from most- to least-serious.
Covid in Jails
With the coronavirus outbreak, the misdemeanor system became much more than a matter of those breaking the law being treated egregiously. About 200,000 people cycle in and out of U.S. jails every week, which spreads an additional 430,000 cases of Covid-19 among the detained, jail workers and surrounding communities.
In a time where infectious disease experts require us to keep 6-feet apart and the average cell is only 3-feet wide, and shared by multiple inmates, it is no wonder that infections in jail spread 9-times faster than in the general population.
The nation’s top clusters of cases have consistently been found in correctional facilities.
In 98% of the largest US cities, crime rates fell even as fewer arrests were made and jail numbers were reduced because of the pandemic. This points to the core issue of our enormous misdemeanor problem; these people should have never been locked up to begin with.