What Weight Should You Give A Misdemeanor?

So you have a sentencing. The defendant has a misdemeanor record. What weight if any should you give that information? J.D. King (Washington and Lee University – School of Law) has posted The Meaning of a Misdemeanor in a Post-Ferguson World: Evaluating the Reliability of Prior Conviction Evidence (54 Ga. L. Rev. 927 (2020)) on SSRN. Here is the abstract: Despite evidence that America’s low-level courts are overburdened, unreliable, and structurally biased, sentencing judges continue to uncritically consider a defendant’s criminal history in fashioning an appropriate punishment. Misdemeanor courts lack many of the procedural safeguards that are thought to ensure accuracy and reliability. As with other stages of the criminal justice system, people of color and poor people are disproportionately burdened with the inaccuracies of the misdemeanor system.

This Article examines instances in which sentencing courts have looked behind the mere fact of a prior conviction and assessed whether that prior conviction offered any meaningful insight for the subsequent sentence.This Article then proposes a framework by which defendants should be allowed to challenge the use of prior conviction evidence in the sentencing context, arguing that the government should bear the burden of persuasion once the defendant sufficiently satisfies a burden of production. Ultimately, however, this Article suggests that courts and legislatures consider categorical exemptions from the use of prior misdemeanor convictions in imposing sentences. Failure to critically examine this evidence risks introducing and compounding the biases and errors of low-level courts into more serious sentencing proceedings.

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