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Friday, April 06, 2012

The Misdemeanor Scholarship Boom

In the last couple of years, there has been a welcome  and overdue investigation of the function and effect of misdemeanors in the criminal justice system.    It is a boom, not a bubble; misdemeanors evidently compromise the majority of criminal prosecutions.  However, the procedural protections associated with them, such as the right to counsel, to a jury trial, and in federal courts, the right to an Article III judge for "petty offenses" are diminished.  Erica Hashimoto's thoughtful 2007 William & Mary article  The Price of Misdemeanor Representation proposed moving in the direction of misdemeanor exceptionalism, moving resources, where possible from misdemeanor representation to felonies, where more is at stake.  

A number of scholars disagree. 

Jenny Roberts' 2011 UC Davis article Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts turns on the potential for severe collateral consequences, such as deportation.  Because there are so many misdemeanors, and they can affect one's legal standing in society, Professor Roberts argues that misdemeanor representation is quite important, and the ABA, National Legal Aid and Defender Association, and other state and national organizations that develop standards for lawyer performance  should include performance guidelines for misdemeanors. 

Alexandra Natapoff recently published the pithily titled Misdemeanors in Southern Cal.  Agreeing with Professor Roberts about the importance of collateral consequences of misdemeanor convictions, Professor Natapoff makes the further argument that misdemeanor procedures are sufficiently informal that many innocent people are likley to be convicted.  Also worth reading is John Derek King's chapter Procedural Justice, Collateral Consequences and the Adjudication of Misdemeanors,  which also addresses changes in the functioning of the criminal justice system , again making misdemeanor convictions important.

I for one am convinced that misdemeanors are too consequential for them to be imposed without juries, judges and lawyers.  After all, the Sixth Amendment grants rights "in all criminal prosecutions", not in cases of felony, which was a term well known to the drafters.   In addition, whatever criminal prosecutions meant, surely it should include misdemeanor convictions carrying significant collateral consequences, such as being the basis for a criminal history enhancement if the defendant is every convicted again.  That being said, the law could choose, consistent with Professor Hashimoto's basic thought, and with a proposal by Robert Boruchowitz, to have fewer misdemeanor convictions and/or make them less meaningful.  In that event, substantial savings might result.

Posted by Jack Chin on April 6, 2012 at 04:58 AM | Permalink

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