Watching court one day in New Orleans, I listened to a judge address an indigent defendant as a repeat offender. “Your honor,” protested the public defender, “My client has never been convicted of a crime – all of those charges were dismissed.” The judge then read off a short list: Disorderly conduct, trespass, trespass, simple possession, public intoxication, failure to produce identification…The client looked at his public defender, incredulous and said, “But those ain’t no crime crimes….”

Take Utah as an example. In the Industry State, everything is a crime. Traffic violations, jaywalking, failure to have insurance, "dog fight," you name it. Imagine the shock an out-of-state driver must feel when a simple speeding ticket means they now have a criminal record, and maybe even probation and a suspended jail sentence as well.

It’s not just Utah criminalizing the little stuff, though – some time back John Stuart wrote about a Minnesota defendant who was arrested (and prosecuted!) for stealing pickles off the hot dog condiment bar at a Gas&Go. In Florida, police ran major operations to catch people riding unregistered bicycles. There’s the client in Louisiana being labeled a “repeat offender” for a series of arrests largely stemming from his homelessness, and another who, in St. Tammany Parish, came in to request a police report and was arrested for stealing the pen off the log-in clipboard. I kid you not – see this article.

These are not anomalies – it happens all the time. The NACDL report, “Minor Crimes, Massive Waste,” cites criminal statutes in New York for taking up more than one subway seat; in Florida for providing food for the homeless; and a report that found that more than 10|PERCENT| of all cases in Grand Traverse County, MI were for the charge of driving with a suspended license.

When in a courtroom, there’s a mandate of decorum that can imply credibility to what is actually absurd – a case of the Emperor without clothes. It’s hard to imagine it going well if a public defender scoffed and said, “Judge, are you telling me you’ve never taken a pen from the bank? Or left the house without your ID?" It would probably go even worse to laugh out loud when a judge tries to paint a career criminal from a homeless guy who’s undoubtedly being hassled by police so ineptly they can’t even get a simple conviction to stick on a half-dozen arrests. And how do you keep a straight face when mounting the defense for a charge of stealing a finger-pinch of pickles?

Except that the sanctions are serious, not just for that one client, but the hundreds of other clients that a public defender might likely represent on other silly charges. The consequences of even a single misdemeanor traffic offense is something I would want my public defender to take seriously. But what if taking it seriously in court, without simultaneously campaigning against the over-criminalization or over-enforcement of minor offenses, perpetuates the problem?

I am not sure that the general public realizes that our courts are jammed up with the effort (usually half-hearted at best) to administer justice for offenses like this. I tend to think not, and I am certain that they do not realize that poor people are losing jobs and licenses and having to choose between rent and car payments in favor of court fees for crimes that most of us commit – in fact are impossible not to commit. 

Dare I suggest that being educated, white and middle class protects those of us fitting that specific demographic, and that if more of the general public sat and watched court, they’d join our campaign to lesson the penalties, limit the continuing consequences, and get rid of some of the “crimes” all together. If the white, affluent public started to experience what’s happening to poor minority communities, I’d wager there would be a revolt.

The justice system exists to protect public safety. Through story-telling, education and outreach and policy advocacy, I think we all need to take up the New Orleans defendant’s refrain as a legitimate part of the defense: those just ain’t no “crime” crimes.