Charging on the margin.

• Author: Crane, Paul T.
• Position: Abstract through II. Strategic Undercharging: Why Less Is Sometimes More B. Efficiency Gains 1. Initial Felony Costs: Grand Juries and Preliminary Hearings, p. 775-804

Abstract

The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses--penalties such as requirements to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation. Although there is a wealth of scholarship studying the effect this development has on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives. This Article starts to remedy that gap by exploring the influence that collateral consequences exert on initial charging decisions in low-level prosecutions.

Critically, the ability to impose certain collateral consequences through a misdemeanor conviction unlocks an array of additional charging options for prosecutors. As a result, prosecutors are now more likely to engage in a practice I term "strategic undercharging." A prosecutor engages in strategic undercharging when she charges a lesser offense than she otherwise could, but does so for reasons that advance her own prosecutorial aims--and not as an act of grace or leniency. In other words, prosecutors can sometimes gain more by charging less. By explaining why (and when) prosecutors are likely to engage in strategic undercharging, this Article complicates the conventional wisdom that prosecutors reflexively file the most severe charges available.

This Article also proposes that collateral consequences be factored into the determination of what procedural safeguards are afforded a criminal defendant. Under existing law, collateral consequences are generally deemed irrelevant to that inquiry; the degree of procedural protection provided in a given case turns exclusively on the threatened term of incarceration. Changing this approach could have several salutary effects on the administration of collateral consequences. At a minimum, it would honor a basic principle underlying our criminal justice system: the threat of serious penalties warrants serious procedures.

TABLE OF CONTENTS INTRODUCTION I. The Significance of Collateral Consequences A. Collateral Consequences vs. Direct Consequences B. The Erosion of the Felony-Misdemeanor Line C. Collateral Consequences and Prosecutors 1. Sex Offender Registration 2. Firearm Prohibitions 3. Deportation D. Collateral Consequences and Low-Level Prosecutions II. STRATEGIC UNDERCHARGING: WHY LESS IS SOMETIMES MORE A. The Choice B. Efficiency Gains 1. Initial Felony Costs: Grand Juries and Preliminary Hearings 2. Felony Discovery Costs 3. Potential Future Costs: Right to a Jury Trial C. Increasing (or at Least Not Decreasing) the Likelihood of Conviction D. The (Minimal) Penalty Sacrifice III. STRATEGIC UNDERCHARGING'S RIPPLE EFFECTS A. Misdemeanor Courts B. Misdemeanor Defense Counsel C. Misdemeanor Prosecutors IV. TAKING SERIOUS MISDEMEANORS SERIOUSLY A. Reconsidering Relative Severity B. Implications CONCLUSION INTRODUCTION

Misdemeanor or felony? That is a question prosecutors routinely ask themselves when deciding what charges to file in a given case. And the answer is important, for misdemeanor prosecutions and felony prosecutions differ in significant ways. Among other things, felonies threaten more severe penalties than misdemeanors, but they also trigger more procedural safeguards.

Accordingly, when a prosecutor is deciding whether to bring a felony or misdemeanor charge, she generally must determine whether the ability to impose heightened penalties is worth the costs generated by the more demanding procedures. Sometimes the answer is obvious--homicide will be charged as a felony, jaywalking as a misdemeanor. But often the answer is not so clear. For many cases, the alleged conduct could plausibly be charged either as a felony or as a misdemeanor. In those circumstances, prosecutors must decide whether the ability to impose felony penalties is worth enduring felony procedures.

That, at least, is the choice prosecutors traditionally faced when charging on the margin. Over the last two decades, however, the American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. (1) Specifically, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses--consequences that formerly were triggered only by felonies. (2) For example, misdemeanor convictions can now lead to a defendant being required to register as a sex offender, prohibited from owning or possessing a firearm, or deported. (3)

This Article's primary claim is that attaching those sorts of collateral consequences to misdemeanor offenses provides prosecutors with strong incentives to charge a borderline case as a misdemeanor rather than a felony. This claim rests principally on two widely accepted facts.

First, in many criminal cases, the most significant penalty at stake is a collateral consequence rather than incarceration. (4) This is especially true for cases involving relatively low-level prosecutions, which I consider for the purposes of this Article to be prosecutions for either a low-grade felony or a misdemeanor. In those cases, a collateral consequence will often be a prosecutor's most potent and enduring sanction.

Collateral consequences can frequently be used to further a prosecutor's sentencing aims, including the standard goal of reducing threats to public safety. (5) Such consequences take on even more significance in low-level prosecutions given their relative duration. Although incarceration terms for low-level convictions typically top out at a couple of months--and rarely more than a few years--several key collateral consequences last for decades or even life. (6) For example, the obligation to register as a sex offender lasts for a minimum of fifteen years and sometimes for life. (7) Firearm prohibitions are typically lifetime bans. (8) And deportation results in permanent exclusion from the United States. (9) In short, as the drafters of the Uniform Collateral Consequences of Conviction Act correctly observed, "collateral consequences in many instances are what is really at stake, the real point of achieving a conviction." (10)

The second key point involves the relationship between collateral consequences and adjudicatory procedures. Collateral consequences are generally deemed irrelevant for determining what procedural safeguards must be afforded a criminal defendant. (11) Felony defendants possess a bundle of heightened procedural entitlements--such as rights to a grand jury, a preliminary hearing, increased discovery, and a jury trial--that misdemeanor defendants are often denied. (12) Critically, the fact that a misdemeanor conviction will result in a severe collateral consequence does not trigger any heightened procedural protections. (13)

Given these two facts--that collateral consequences are often the most important component of a criminal prosecution and that they do not trigger heightened procedural protections--it should become clear how the attachment of severe collateral consequences to misdemeanor offenses affects prosecutorial incentives. Prosecutors are more likely to file misdemeanor charges because they can still achieve the penalty they desire without having to endure the greater costs generated by felony prosecutions. (14)

At first blush, the choice to file a misdemeanor charge involving a severe collateral consequence may appear to be a win-win for both sides: prosecutors can pursue the case in a more efficient manner, and the defendant is exposed to less...