Academic journal article William and Mary Law Review

Charging on the Margin

Academic journal article William and Mary Law Review

Charging on the Margin

Article excerpt


The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses--penalties such as requirements to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation. Although there is a wealth of scholarship studying the effect this development has on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives. This Article starts to remedy that gap by exploring the influence that collateral consequences exert on initial charging decisions in low-level prosecutions.

Critically, the ability to impose certain collateral consequences through a misdemeanor conviction unlocks an array of additional charging options for prosecutors. As a result, prosecutors are now more likely to engage in a practice I term "strategic undercharging." A prosecutor engages in strategic undercharging when she charges a lesser offense than she otherwise could, but does so for reasons that advance her own prosecutorial aims--and not as an act of grace or leniency. In other words, prosecutors can sometimes gain more by charging less. By explaining why (and when) prosecutors are likely to engage in strategic undercharging, this Article complicates the conventional wisdom that prosecutors reflexively file the most severe charges available.

This Article also proposes that collateral consequences be factored into the determination of what procedural safeguards are afforded a criminal defendant. Under existing law, collateral consequences are generally deemed irrelevant to that inquiry; the degree of procedural protection provided in a given case turns exclusively on the threatened term of incarceration. Changing this approach could have several salutary effects on the administration of collateral consequences. At a minimum, it would honor a basic principle underlying our criminal justice system: the threat of serious penalties warrants serious procedures.

I. The Significance of Collateral Consequences
   A. Collateral Consequences vs. Direct Consequences
   B. The Erosion of the Felony-Misdemeanor Line
   C. Collateral Consequences and Prosecutors
      1. Sex Offender Registration
      2. Firearm Prohibitions
      3. Deportation
   D. Collateral Consequences and Low-Level Prosecutions
   A. The Choice
   B. Efficiency Gains
      1. Initial Felony Costs: Grand Juries and Preliminary
      2. Felony Discovery Costs
      3. Potential Future Costs: Right to a Jury Trial
   C. Increasing (or at Least Not Decreasing) the Likelihood
      of Conviction
D. The (Minimal) Penalty Sacrifice
   A. Misdemeanor Courts
   B. Misdemeanor Defense Counsel
   C. Misdemeanor Prosecutors
   A. Reconsidering Relative Severity
   B. Implications


Misdemeanor or felony? That is a question prosecutors routinely ask themselves when deciding what charges to file in a given case. And the answer is important, for misdemeanor prosecutions and felony prosecutions differ in significant ways. Among other things, felonies threaten more severe penalties than misdemeanors, but they also trigger more procedural safeguards.

Accordingly, when a prosecutor is deciding whether to bring a felony or misdemeanor charge, she generally must determine whether the ability to impose heightened penalties is worth the costs generated by the more demanding procedures. Sometimes the answer is obvious--homicide will be charged as a felony, jaywalking as a misdemeanor. But often the answer is not so clear. For many cases, the alleged conduct could plausibly be charged either as a felony or as a misdemeanor. …

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