Prosecutors deciding whether to file a misdemeanor or felony charge in a borderline case are likely to engage in “strategic undercharging,” knowing that a conviction on the misdemeanor carries an expanded set of penalties, according to research forthcoming in the William & Mary Law Review. But while misdemeanor defendants have faced a growing set of penalties since the 1990s, they do not enjoy the same safeguards as felony defendants.
The penalties for misdemeanor offenses, also called “collateral consequences,” could include being required to register as a sex offender, being prohibited from owning a firearm and deportation, Paul Crane, a professor at the University of Chicago Law School writes in a study titled “Charging on the Margin.” Although the penalties for felony defendants are still harsher, the procedural safeguards they are entitled to include rights to a grand jury, a preliminary hearing and a jury trial, as well as bargaining chips during the negotiation process.
“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 aims—and not as an act of grace or leniency,” Crane writes. “Prosecutors will sometimes exercise their charging prerogative by filing a lesser charge and, in so doing, gain the strategic advantage that comes from significantly reducing a defendant's procedural entitlements.”
As a result of the expanded penalties increasingly triggered by misdemeanor convictions, Crane writes that the distinction between felonies and misdemeanors is starting to blur. The study is part of the Public Law and Legal Theory Working Paper Series.
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