Erasing the line between felony and misdemeanor
Two provocative new scholarly articles examine the extent to which the crisp line historically drawn in law between felonies and misdemeanors is becoming increasingly ephemeral. In Informed Misdemeanor Sentencing, Jenny Roberts points out that conviction of a misdemeanor has become exponentially more serious in recent years as the associated collateral consequences have increased in number and severity. She urges judges to “explicitly acknowledge the many serious collateral consequences an individual suffers after any penal sanction, and incorporate those into the sentencing process to ensure that punishment is proportionate.” She recommends that sentencing courts should make “more use of deferred adjudication as well as expungement and related mechanisms for mitigating the unintended effects of a misdemeanor conviction.”
Jack Chin and John Ormonde make essentially the same point about the blurring of the old distinction between felony and misdemeanor in a forthcoming article in the Minnesota Law Review. In Infamous Misdemeanors and the Grand Jury Clause, they point out that “[i]n the late 19th and early 20th century, the Supreme Court held in a series of cases, never overruled, that to charge an infamous misdemeanor required a grand jury indictment.” They conclude that, because of the stigma that attaches to any criminal record, the Fifth Amendment requires that “many more federal offenses should be prosecuted by grand jury indictment than is now the practice.”
It is impossible to determine exactly how many of the 48,000 consequences collected in the National Inventory of the Collateral Consequences of Conviction are triggered by a misdemeanor conviction, but so many legal and regulatory consequences attach to specific categories of offenses that include misdemeanors (e.g., drug crimes, sexual offenses, crimes involving dishonesty), it is likely a substantial portion. Moreover, given the ubiquity of criminal background checking pervading every area of modern life, even a criminal record involving dismissed misdemeanor charges may result in discrimination and exclusion.