« Lots and lots of federal drug charges resulting from Operation Legend, which is purportedly to "fight violent crime" | Main | Federal prison population, per BOP report of "Total Federal Inmates," now down to 156,415 »

August 19, 2020

"The Meaning of a Misdemeanor in a Post-Ferguson World: Evaluating the Reliability of Prior Conviction Evidence"

The title of this post is the title of this new paper now available via SSRN authored by J.D. King.  Here is its abstract:

Despite evidence that America's low-level courts are overburdened, unreliable, and structurally biased, sentencing judges continue to uncritically consider a defendant's criminal history in fashioning an appropriate punishment. Misdemeanor courts lack many of the procedural safeguards that are thought to ensure accuracy and reliability.  As with other stages of the criminal justice system, people of color and poor people are disproportionately burdened with the inaccuracies of the misdemeanor system.

This Article examines instances in which sentencing courts have looked behind the mere fact of a prior conviction and assessed whether that prior conviction offered any meaningful insight for the subsequent sentence.  This Article then proposes a framework by which defendants should be allowed to challenge the use of prior conviction evidence in the sentencing context, arguing that the government should bear the burden of persuasion once the defendant sufficiently satisfies a burden of production.  Ultimately, however, this Article suggests that courts and legislatures consider categorical exemptions from the use of prior misdemeanor convictions in imposing sentences.  Failure to critically examine this evidence risks introducing and compounding the biases and errors of low-level courts into more serious sentencing proceedings.

August 19, 2020 at 10:41 PM | Permalink


But this could go both ways -- if the accuracy is low because everyone makes deals, the truth could just as easily be worse for the defendant than the negotiated outcome the prosecutor agreed to because of calendar pressures. Should the prosecutor be allowed to introduce evidence/argument that the court should treat the conviction like a more serious misdemeanor or even a felony?

Posted by: Jason | Aug 19, 2020 11:44:28 PM

Here in Kentucky, we yesterday discovered a serious charging mistake (based upon an alleged prior felony conviction) made by a local County Attorney. Defendant was charged with being a felon in possession of a handgun. Although Defendant has previously been charged with several felonies, in every prior case, his counsel negotiated the felonies down to misdemeanor pleas. Thus, Defendant does not have a prior felony CONVICTION, so his current charge must be dismissed. Has anyone ever seen a prosecutor make a mistake like this?

Posted by: James J. Gormley | Aug 20, 2020 8:11:45 AM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB