Prosecuting Misdemeanors

Oxford Handbook of Prosecutors and Prosecution, Forthcoming

American University, WCL Research Paper No. 2020-28

27 Pages Posted: 27 Jan 2021 Last revised: 17 Mar 2021

See all articles by Jenny Roberts

Jenny Roberts

American University - Washington College of Law

Date Written: October 25, 2020


Although violent crime gets the most media, public, and legislative attention in the United States, misdemeanors make up approximately 75 percent of all criminal court cases, with more than 13 million new misdemeanor cases filed each year. This chapter discusses the role of prosecutors in the misdemeanor system. First, it addresses prosecutorial discretion and mass misdemeanor criminalization. Prosecutors, with near-unfettered discretionary power, are characterized as the most powerful actors in criminal cases. Yet often, prosecutors fail to properly exercise their discretion in low-level cases or are completely absent from the charging and sometimes even the adjudicatory processes. This is particularly problematic in misdemeanor cases, where informed prosecutorial decision-making is critical given the enormous volume of arrests and structural and institutional realities that weaken the role of other lower court actors. Proper exercise of discretion is also critical given well-documented racial disparities in the misdemeanor realm and the need to mitigate the myriad disproportionate effects of the ever-growing number of collateral consequences that flow from even a minor criminal record. Second, the chapter examines the misdemeanor prosecutor’s role at key stages: charging, bail, plea bargaining, sentencing, expungement, and post-conviction innocence claims. The chapter draws on examples of prosecutorial practice as well as theoretical and empirical research about prosecutorial discretion. Some recently elected so-called progressive prosecutors have already implemented significant promised changes. Although implementation of such reforms is nascent, time will tell whether a newly attentive electorate and a fresh prosecutorial approach will begin to roll back the extreme overuse and disproportionate impact of misdemeanor prosecutions in the United States.

Keywords: Misdemeanors, Prosecution, Prosecutor, Discretion, Lower Criminal Court, Collateral Consequences

JEL Classification: K14

Suggested Citation

Roberts, Jenny, Prosecuting Misdemeanors (October 25, 2020). Oxford Handbook of Prosecutors and Prosecution, Forthcoming, American University, WCL Research Paper No. 2020-28, Available at SSRN:

Jenny Roberts (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States

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