Tag: mayson

“The Scale of Misdemeanor Justice”

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.” The abstract of “The Scale of Misdemeanor Justice,” forthcoming in the Boston University Law Review, follows: This Article seeks to inform misdemeanor scholarship and policy by creating the most comprehensive national-level analysis of misdemeanor criminal justice that is currently feasible given the state of data collection in the United States. First, we estimate that there are 13.2 million misdemeanor cases filed in the United States each year. Second, contrary to conventional wisdom, this number is not rising. Both the number of misdemeanor arrests and cases filed have declined markedly in recent years. In fact, arrest rates for almost every misdemeanor offense category have been declining for at least two decades in almost every state for which data is available. Third, there is profound racial disparity in the misdemeanor arrest rate for most—but not all—offense types. This is sobering if not surprising. More unexpectedly, perhaps, the variation in racial disparity across offense types has remained remarkably constant over the past thirty-seven years; the offenses marked by the greatest racial disparity in arrest rates in 1980 are more or less the same as those marked by greatest racial disparity today. Our national caseload estimate confirms current perceptions about the scale of misdemeanor justice, but the declining arrest and case-filing rates present a challenge for misdemeanor scholarship. Contemporary research on misdemeanors has been influenced by the impression that the system is expanding. As a result, the theoretical contributions made by recent scholars provide no immediate explanation for the decline in misdemeanor arrests and case-filing rates. In addition, we document what to us was a surprising degree of uniformity in misdemeanor trends. Such consistency suggests that the misdemeanor system may have a deeper and more uniform structure than we anticipated, and may be subject to common influences across jurisdictions. As misdemeanor scholarship develops, we believe that an important challenge is to expand our theories of misdemeanor justice to make sense of the statistical patterns presented here. Read more

Collateral consequences: punishment or regulation?

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. Mayson notes that the Supreme Court’s two 2003 decisions upholding sex offender registration schemes in Connecticut and Alaska did not rule out the possibility of substantive due process as a basis for challenge.  (An example of this, decided after Mayson’s article was published, is the Pennsylvania Court of Appeals’ decision in Peake v. Commonwealth, striking down provisions of the PA Older Adults Protective Services Act under the state constitution on substantive due process grounds.) Because Mayson doesn’t regard collateral consequences as part of the sentence, she questions the advisability of making sentencing courts responsible for managing them in the sentencing process, as proposed by the Uniform Law Commission and the American Law Institute. The analytical framework proposed by Mayson for dealing with mandatory collateral consequences is appealing, but it is not likely to have much practical effect except in the kind of extreme circumstances involved in Peake.  The problem is that we have constructed a vast apparatus of mandatory collateral penalties with no possibility for administrative challenge, and litigation is costly and time-consuming.  The dispensing role assigned courts under the ULC and ALI proposals, already in effect in several states including New York and Vermont, has greater potential for delivering individualized relief.  At the same time, it is important to devise clear enforceable risk-related standards to guide courts in deciding when a mandatory consequence is inappropriate. The article’s abstract follows: Approximately eight percent of adults in the United States have a felony conviction. The “collateral consequences” of criminal conviction (CCs) — legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence — have relegated that group to permanent second class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should correct course by classifying CCs as “punishment,” the consensus holds, such that constitutional constraints on punishment will apply. This Article argues for a different approach. The consensus view overlooks the fact that most CCs invoke a judgment of dangerousness as the basis for limiting individual liberty. Given their predictive logic, the Article contends that there are serious costs to classifying (most) CCs as punishment and that the courts have reached a defensible result in declining to do so. Where they have erred is in assuming that, as mere regulation, CCs are benign. On the contrary, laws that restrict certain people’s liberty solely on the basis of their perceived propensity to commit future crimes raise both moral and constitutional concerns. Rather than classify CCs as punishment, this Article contends that the better approach to constitutional adjudication of most CCs — for both theoretical and tactical reasons — is to recognize them as predictive risk regulation and seek to develop appropriate constraints. You can find more scholarly articles dealing with collateral consequences and relief from their effects on our resource page here. Read more