There is a growing awareness that the consequences of a misdemeanor arrest or conviction have become exponentially more serious
in recent years. We also know that the misdemeanor system is enormous, and that its very size makes it particularly susceptible of abuse
. Yet we have very little reliable information about how many people in the United States have a misdemeanor record. A new research report
by Professors Megan Stevenson and Sandra Mayson begins to fill this gap, in the process challenging the conventional wisdom that the misdemeanor system is expanding.
Based on “the most comprehensive national-level analysis of misdemeanor criminal justice that is currently feasible,” the report reaches the surprising conclusion that both the number of misdemeanor arrests and cases filed each year have “declined markedly” in recent years. At the same time, unsurprisingly, it concludes that there is “profound racial disparity” in misdemeanor arrest rates for most offense types, and that this disparity has “remained remarkably constant” over almost four decades. While the report confirms current perceptions about the scale of misdemeanor justice and its disparate racial impact, its fascinating findings of “declining arrest and case-filing rates present a challenge for misdemeanor scholarship.”
Have we been wrong in trying to fit the round peg of collateral consequences into the square hole of punishment? Sandra Mayson, a Fellow at the Quattrone Center at the University of Pennsylvania Law School, says yes. In an article published in the Notre Dame Law Review, Mayson challenges the view of some scholars that mandatory collateral consequences should be considered part of the court-imposed sentence, and thus potentially limited by procedural due process and ex post facto principles. For starters, the Supreme Court has told us that dog won’t hunt.
But that doesn’t mean that collateral consequences should be immune from constitutional constraint. Mayson proposes instead to analyze collateral consequences as “preventive risk regulation” under principles developed in the administrative law context. Specifically, she argues that a severe collateral consequence (such as sex offender registration) may be justified only if it can be shown to serve a public safety purpose in a particular case.