Proportionality and Other Misdemeanor Myths

Abstract

Criminal law theory is laden with faulty assumptions about misdemeanors. This Symposium Article summarizes five key mistaken assumptions — “misdemeanor myths” — that distort misdemeanor processing: (1) the stakes are small, (2) criminal procedure matters, (3) prosecutors maximize sentences, (4) pleas are informed, and (5) the sentence matters most. In addition, it examines emerging relief efforts, such as expungements, that offer the promise of reducing disproportionate penalties. It argues that while certain initiatives hold the promise of reform, they are too often laden with onerous procedural and substantive hurdles. As a result, they offer little more than palliative relief to the rare few. They perpetrate the procedural hassle that characterizes misdemeanor courts, rather than offering relief from it. Conceptually, this approach gets it backwards. It gives the misdemeanor system far more credit than is warranted in leading to outcomes that do not offend basic principles of proportionality and procedural fairness. This Article argues that relief efforts should focus on alleviating the well-documented systemic failures of the misdemeanor system, rather than assuming that the state has a legitimate penal rationale for imposing collateral penalties in the first place.

Keywords: misdemeanors, collateral consequences