While there is much to be said about the problem of mass incarceration and strategies for de-incarceration, the goal of this Essay is to bring two things to the conversation. The first is misdemeanors. Of the 2.2 million individuals incarcerated, approximately one-third are held in jails rather than prisons, suggesting that a significant number are being held for misdemeanors. Even this obscures the full impact of misdemeanors on mass incarceration. As Alexandra Natapoff reminds us, misdemeanors, in fact, make up the vast bulk of our criminal justice system and “fuel[] some of its most pressing problems.” In fact, “[m]ost Americans experience criminal justice via the petty offense process; the ten million misdemeanor cases filed annually comprise around eighty percent of state dockets.” Quite simply, the “misdemeanor machinery is a major source of overcriminalization.”
The second thing that must be brought to the table—with respect to mass incarceration as a whole but also with respect to misdemeanors—is race, but not in the usual way. Usually, when we think of race and criminal justice, we think of racialized policing and the overrepresentation of racial minorities in jails and prisons. Certainly, my own writing has focused on those issues. But in this Essay I want to ask, what happens when we consider criminal justice not only as an issue of overcriminalization and overenforcement vis-à-vis racial minorities, but also as an issue of undercriminalization and underenforcement vis-à-vis non-minorities? Put differently, in this time when we are again discussing white privilege and telling each other, “Check your privilege,” and at this time when the hashtag #Crimingwhilewhite has become a phenomenon, are there advantages to talking about white privilege—or more generally, privilege—and criminal justice? Is there an assumed “racial pass”? Are there advantages to talking about the under-policed? Finally, how might those conversations impact the issue du jour, mass incarceration?
What follows is a brief exploration of these issues
