Rethinking Misdemeanor Neglect


Millions of criminal defendants, most of them indigent, are convicted of misdemeanor offenses every year. Many are constitutionally entitled to free legal counsel, yet in practice the quality of that counsel depends on how public defender agencies allocate attorneys between misdemeanor and felony defendants. Attorney experience is a limited, if not scarce, resource, and public defenders will often manage this resource by allocating the more experienced attorneys to those defendants charged with felony offenses. This approach seems sensible; after all, defendants charged with felony offenses risk longer incarceration periods than those charged with misdemeanors.

Yet, in this Article, I show that this widespread approach is misguided. Misdemeanor convictions are not as harmless as many assume. Every year, misdemeanor convictions saddle millions of Americans with consequences affecting their liberty, housing, employment, education, and immigration status. I argue that public defender administrators should respond to the significant costs of misdemeanor convictions by emphasizing misdemeanor representation even at the expense of felonies. An individual public defender can handle multiple misdemeanor cases with the same amount of effort necessary to represent a single felony case. Misdemeanors also have a significant effect on how much future contact a particular defendant, and the third parties within his or her network, will have with the criminal justice system. In this Article, I look beyond the dated understanding of the right to counsel to adopt a more effective approach to public defender resource allocation. This approach focuses on misdemeanor representation instead of felonies by considering how public defenders could maximize the benefits of their attorney experience resource, instead of simply relying on the severity of the statutory punishment to guide their distribution decisions.

About the Author

Acting Professor and Martin Luther King, Jr. Hall Research Scholar at UC Davis School of Law.

By uclalaw