Academic journal article Boston University Law Review

Proportionality and Other Misdemeanor Myths

Academic journal article Boston University Law Review

Proportionality and Other Misdemeanor Myths

Article excerpt


Misdemeanors have a proportionality problem. Minor misdemeanors can trigger massive collateral consequences, often without adequate notice or meaningful process.1 Outcomes systemically appear arbitrary, disproportionate, and procedurally unfair. At the same time, because proportionality doctrine- like much of criminal law doctrine-focuses on the formal penalty, it misses the impact of collateral consequences.2 There is a profound disconnect between the lived experience of misdemeanants and the legal doctrines that govern the criminal law.

This Article has two aims. First, it summarizes the following key faulty assumptions-"misdemeanor myths"-that distort the misdemeanor system: (1) the stakes are small, (2) criminal procedure matters, (3) prosecutors maximize sentences, (4) pleas are informed, and (5) the sentence matters most. Second, it considers the potential for relief efforts to address the structural failures of the misdemeanor system. Important initiatives, such as certificates of relief, expungements, and prosecutorial policies hold the promise of addressing disproportionate consequences. Too often, however, relief initiatives are encumbered by a daunting array of procedural and substantive hurdles. These initiatives appear to assume that penalties are justified, rather than questioning whether the use of the state's law enforcement power comports with core principles of proportionality and procedural fairness.

This Article argues that this approach gets it backwards. It shifts the burden to the defendant to seek relief, rather than focusing on whether the state has demonstrated a sufficient justification for triggering harm. As a result, some relief efforts offer little more than palliative relief for the rare few. Even as they hold out the promise of relief, they reinforce the assumption that the misdemeanor process as a general matter is fair, and that the harm misdemeanors impose is necessary to fulfill a legitimate penal purpose, such as deterrence or retribution.

This Article argues for reframing relief efforts to address the misdemeanor myths. The problem with misdemeanors is not just that the system lends itself to abuse by bad actors, such as police officers who make unwarranted arrests. Rather, even when police and prosecutors pursue justified, lawful, and desirable misdemeanor charges, they lack the ability to regulate whether arrest and conviction records trigger deeply disproportionate civil penalties. Law enforcement has, in effect, abdicated responsibility for regulating key aspects of the harm that stems from misdemeanors.

Relief efforts should take these dynamics into account. Rather than assuming that relief is only warranted in exceptional cases, the goal ought to be to focus on how a "typical" misdemeneant experiences the process, including through empirical information about delays in misdemeanor courts, availability of defense counsel, and evidence that even low-level contact with the criminal justice system triggers significant noncriminal penalties. Relief efforts should be informed by research demonstrating that low-level arrests and convictions systemically trigger massive consequences, including in ways that are not apparent at the time of an arrest or conviction.3 The goal should be to make more avenues of relief routine and unfettered, rather than sporadic and discretionary.4

This Article proceeds as follows. Part I summarizes five mistaken assumptions about the criminal justice system that pervade misdemeanor processing. Part II discusses how relief efforts, such as expungements, pardons, certificates of relief, prosecutorial policies, and sentencing decisions, risk narrowing the scope of reform by imposing unnecessary restrictions. Part III discusses how reform efforts could be reframed. In particular, it calls for a renewed focus on whether the state has demonstrated a legitimate penal rationale for penalties triggered by low-level contact with the criminal justice system. …

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