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April 21, 2019

"Misdemeanors by the Numbers"

The title of this post is the title of this notable new article now available via SSRN authored by Sandra Mayson and Megan Stevenson.  Here is its abstract:

Recent scholarship has underlined the importance of criminal misdemeanor law enforcement, including the impact of public-order policing on communities of color, the collateral consequences of misdemeanor arrest or conviction, and the use of misdemeanor prosecution to raise municipal revenue.  But despite the fact that misdemeanors represent more than three-quarters of all criminal cases filed annually in the United States, our knowledge of misdemeanor case processing is based mostly on anecdote and extremely localized research.  This Article represents the most substantial empirical analysis of misdemeanor case processing to date.  Using multiple court-record datasets, covering several million cases across eight diverse jurisdictions, we present a detailed documentation of misdemeanor case processing from the date of filing through adjudication and sentencing.

The resulting portrait reveals a system that disproportionately impacts poor people and people of color.  Between 2011 and 2016, each jurisdiction studied relied on monetary bail, which resulted in high rates of pretrial detention even at relatively low amounts, and imposed court costs upon conviction.  There were substantial racial disparities in case-filing rates across locales and offense categories.  The data also, however, highlight profound jurisdictional heterogeneity in how misdemeanors are defined and prosecuted.  The variation suggests that misdemeanor adjudication systems may have fundamentally different characters, and serve different functions, from place to place. It thus presents a major challenge to efforts to describe and theorize the contemporary landscape of misdemeanor justice.  At the most fundamental level, the variation calls into question the coherence of the very concept of a misdemeanor, or of misdemeanor criminal justice.  As appreciation for the significance of low-level law enforcement builds, we urge scholars and policymakers to attend carefully to the complexity of this sub-felony world.

April 21, 2019 at 11:12 AM | Permalink


I agree we should call into question the coherence of the very concept of a misdemeanor. As I posted six or eight months ago, in N.C., we have misdemeanors for which a defendant can receive a sentence of three years in prison, and felonies, like possessing small amount of cocaine by someone with no record, for which the defendant cannot receive a single day of incarceration.

That simply makes no sense if a felony is truly conduct which is "villainous" and a misdemeanor is just misbehaving.

I have presented this argument to the Court of Appeals with no luck.


Posted by: bruce cunningham | Apr 21, 2019 11:18:09 AM

Keep at it!

Posted by: Doug B | Apr 21, 2019 11:46:49 AM

"I agree we should call into question the coherence of the very concept of a misdemeanor."

I agree and have made this point in the past. Because once we call into question the concept of a misdemeanor then by implication we call into question the very concept of a felony. So then the question is does the misdemeanor/felony distinction have any conceptual coherence or particular utility? I think it doesn't.

Posted by: Daniel | Apr 21, 2019 3:30:13 PM

Yes, Daniel. It is just another example of nothing ever comes off the table in the criminal justice sphere when something new is added to the table. I heard that New Jersey abolished the misdemeanor/felony distinction when they enacted a structured sentencing system. Can anyone verify of deny that?


Doug, right now I have pending in the Court of Appeals in NC the question of whether "Habitual Driving While Impaired is a felony, like the legislature said it is, or is it a misdemeanor conviction of DWI, with the sentence elevated due to recidivism?
I still use and refer to the article in the Federal Sentencing Reporter you invited me to write, called "Kicked Up Misdemeanors." The title refers to Justice Scalia's question during oral argument in Johnson of "Have we ever approved that, by the way, of kicking up a misdemeanor to a felony due to recidivism?

I think the answer to Scalia's question is yes they have addressed it, in McDonald v Massachusetts, and the answer is no, the State can't do that. Lots of states, I think 34 is my recollection , have the offense of Habitual DWI. If you would like I can send you the brief arguing that habitual DWI is still a misdemeanor., regardless of what the legislative branch says.

As Scalia said in Ring v Arizona, the State can call something Mary Jane, if it functions as an essential component of a substantive offense, it must be found by a jury beyond a reasonable doubt.


Posted by: bruce cunningham | Apr 21, 2019 4:56:54 PM

You all might be interested in the descriptive work we did on misdemeanors in Illinois: http://www.icjia.state.il.us/spac/pdf/SPAC_Misdemeanor_Report_2018_101818.pdf

For Cook County, the process by which misdemeanors enter the court system may differ from other jurisdictions. Police can directly file the charges and the State's Attorney gets involved later. This procedure likely leads to the 27% no-conviction rate.

Interesting article and glad people are looking at this massive part of the criminal justice system!

Posted by: Nate Inglis Steinfeld | Apr 22, 2019 9:31:00 AM

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