Procedural Justice, Collateral Consequences, and the Adjudication of Misdemeanors
Washington and Lee University
November 15, 2011
THE PROSECUTOR IN TRANSNATIONAL PERSPECTIVE, Erik Luna & Marianne Wade, eds., Oxford University Press, 2011
Washington & Lee Legal Studies Paper No. 2011-19
Scholarly analysis and popular perceptions of the American criminal justice system tend to focus on serious crimes. The majority of Americans, however, will interact with the criminal justice system (if at all) in a misdemeanor courtroom, in which dozens of defendants wait for hours to spend a few moments in front of a judge. Many of them will not be represented by a lawyer and very few of them will have a single piece of paper filed on their behalf. Individually, their cases might command the scrutiny of a police officer for a couple of hours, a prosecutor for a couple of minutes, and a judge for a couple of moments. With a few notable exceptions, the process by which we prosecute and adjudicate low-level cases in the American criminal justice system has gone largely unexplored and unexamined, despite its being the primary contact that most Americans have with the criminal justice system.
This essay addresses some of the issues surrounding the prosecution and adjudication of low-level offenses in the United States, looking specifically at the changed context within which such prosecutions take place today. Part II explores the tension between the formal procedural safeguards and adversarial zeal that is supposed to characterize the American criminal justice system, and the practice of the processing of misdemeanor cases as it actually occurs in courtrooms across the country. Part III examines the recent explosion of the scope and number of collateral consequences that attend a criminal conviction, including many misdemeanor convictions. Part IV addresses the issue of wrongful convictions, an issue that has received great focus recently in the context of serious cases but much less so with regard to the low-level prosecutions that dominate the criminal justice system. Finally, Part V argues that the dramatic increase in misdemeanor prosecutions as well as the sharp rise in the seriousness and scope of the resulting collateral consequences requires a change in how such cases are adjudicated.
Number of Pages in PDF File: 16
Keywords: criminal procedure, prosecution ethics
JEL Classification: K0, K14, K40
Date posted: November 16, 2011