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Charging on the margin.


The American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. In particular, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses--penalties such as requirements to register as a sex offender, prohibitions on owning or possessing a firearm, and deportation. Although there is a wealth of scholarship studying the effect this development has on defendants and their attorneys, little attention has been paid to the impact collateral consequences have on prosecutorial incentives. This Article starts to remedy that gap by exploring the influence that collateral consequences exert on initial charging decisions in low-level prosecutions.

Critically, the ability to impose certain collateral consequences through a misdemeanor conviction unlocks an array of additional charging options for prosecutors. As a result, prosecutors are now more likely to engage in a practice I term "strategic undercharging." 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 prosecutorial aims--and not as an act of grace or leniency. In other words, prosecutors can sometimes gain more by charging less. By explaining why (and when) prosecutors are likely to engage in strategic undercharging, this Article complicates the conventional wisdom that prosecutors reflexively file the most severe charges available.

This Article also proposes that collateral consequences be factored into the determination of what procedural safeguards are afforded a criminal defendant. Under existing law, collateral consequences are generally deemed irrelevant to that inquiry; the degree of procedural protection provided in a given case turns exclusively on the threatened term of incarceration. Changing this approach could have several salutary effects on the administration of collateral consequences. At a minimum, it would honor a basic principle underlying our criminal justice system: the threat of serious penalties warrants serious procedures.
I. The Significance of Collateral Consequences
   A. Collateral Consequences vs. Direct Consequences
   B. The Erosion of the Felony-Misdemeanor Line
   C. Collateral Consequences and Prosecutors
      1. Sex Offender Registration
      2. Firearm Prohibitions
      3. Deportation
   D. Collateral Consequences and Low-Level Prosecutions
   A. The Choice
   B. Efficiency Gains
      1. Initial Felony Costs: Grand Juries and Preliminary
      2. Felony Discovery Costs
      3. Potential Future Costs: Right to a Jury Trial
   C. Increasing (or at Least Not Decreasing) the Likelihood
      of Conviction
D. The (Minimal) Penalty Sacrifice
   A. Misdemeanor Courts
   B. Misdemeanor Defense Counsel
   C. Misdemeanor Prosecutors
   A. Reconsidering Relative Severity
   B. Implications


Misdemeanor or felony? That is a question prosecutors routinely ask themselves when deciding what charges to file in a given case. And the answer is important, for misdemeanor prosecutions and felony prosecutions differ in significant ways. Among other things, felonies threaten more severe penalties than misdemeanors, but they also trigger more procedural safeguards.

Accordingly, when a prosecutor is deciding whether to bring a felony or misdemeanor charge, she generally must determine whether the ability to impose heightened penalties is worth the costs generated by the more demanding procedures. Sometimes the answer is obvious--homicide will be charged as a felony, jaywalking as a misdemeanor. But often the answer is not so clear. For many cases, the alleged conduct could plausibly be charged either as a felony or as a misdemeanor. In those circumstances, prosecutors must decide whether the ability to impose felony penalties is worth enduring felony procedures.

That, at least, is the choice prosecutors traditionally faced when charging on the margin. Over the last two decades, however, the American criminal justice system has experienced a significant expansion in the number and severity of penalties triggered by misdemeanor convictions. (1) Specifically, legislatures have increasingly attached severe collateral consequences to misdemeanor offenses--consequences that formerly were triggered only by felonies. (2) For example, misdemeanor convictions can now lead to a defendant being required to register as a sex offender, prohibited from owning or possessing a firearm, or deported. (3)

This Article's primary claim is that attaching those sorts of collateral consequences to misdemeanor offenses provides prosecutors with strong incentives to charge a borderline case as a misdemeanor rather than a felony. This claim rests principally on two widely accepted facts.

First, in many criminal cases, the most significant penalty at stake is a collateral consequence rather than incarceration. (4) This is especially true for cases involving relatively low-level prosecutions, which I consider for the purposes of this Article to be prosecutions for either a low-grade felony or a misdemeanor. In those cases, a collateral consequence will often be a prosecutor's most potent and enduring sanction.

Collateral consequences can frequently be used to further a prosecutor's sentencing aims, including the standard goal of reducing threats to public safety. (5) Such consequences take on even more significance in low-level prosecutions given their relative duration. Although incarceration terms for low-level convictions typically top out at a couple of months--and rarely more than a few years--several key collateral consequences last for decades or even life. (6) For example, the obligation to register as a sex offender lasts for a minimum of fifteen years and sometimes for life. (7) Firearm prohibitions are typically lifetime bans. (8) And deportation results in permanent exclusion from the United States. (9) In short, as the drafters of the Uniform Collateral Consequences of Conviction Act correctly observed, "collateral consequences in many instances are what is really at stake, the real point of achieving a conviction." (10)

The second key point involves the relationship between collateral consequences and adjudicatory procedures. Collateral consequences are generally deemed irrelevant for determining what procedural safeguards must be afforded a criminal defendant. (11) Felony defendants possess a bundle of heightened procedural entitlements--such as rights to a grand jury, a preliminary hearing, increased discovery, and a jury trial--that misdemeanor defendants are often denied. (12) Critically, the fact that a misdemeanor conviction will result in a severe collateral consequence does not trigger any heightened procedural protections. (13)

Given these two facts--that collateral consequences are often the most important component of a criminal prosecution and that they do not trigger heightened procedural protections--it should become clear how the attachment of severe collateral consequences to misdemeanor offenses affects prosecutorial incentives. Prosecutors are more likely to file misdemeanor charges because they can still achieve the penalty they desire without having to endure the greater costs generated by felony prosecutions. (14)

At first blush, the choice to file a misdemeanor charge involving a severe collateral consequence may appear to be a win-win for both sides: prosecutors can pursue the case in a more efficient manner, and the defendant is exposed to less potential incarceration. (15) But, as is frequently the case with first glances, the full picture is more complicated--especially for criminal defendants. The decision of what charge to initially file can have a domino effect on nearly every other aspect of the case: the procedures afforded the defendant, the identity of the prosecutor handling the case, the identity of the defense attorney charged with holding the government to its burden (or negotiating a favorable plea), and the identity of the judge managing the case to its conclusion. (16) On each of those fronts, the defendant who is charged with a misdemeanor may be left at a greater disadvantage than if he had been charged with a felony.

Felony defendants enjoy a bundle of procedural safeguards that misdemeanor defendants typically do not. (17) These safeguards are designed not only to ensure fair and accurate adjudications but also to provide defendants with meaningful bargaining chips during negotiations. (18) Moreover, misdemeanor prosecutors are usually the most junior members of the office and tend to be harsher than their felony colleagues. (19) They are accordingly less likely to bargain away potential penalties on equitable grounds alone. (20) As for misdemeanor defense attorneys, they tend to be the least experienced while carrying the most voluminous caseloads. (21) Consequently, a meaningful vetting of the government's case is usually the exception and not the rule. Finally, misdemeanor courts suffer the most acute docket pressures, meaning that those judges are likely to prioritize speed and docket clearance above all else. (22)

This Article proposes that collateral consequences be considered when determining what procedural safeguards must be afforded defendants. Under existing law, that determination rests almost entirely on the maximum term of incarceration authorized by the charged offense. But this longstanding approach fails to reflect an important new reality: severe penalties in the form of collateral consequences are no longer reserved for felony convictions but are now triggered by misdemeanor convictions as well. As detailed below, adoption of this proposal could have several salutary effects on the administration of collateral consequences. At a minimum, it would honor a basic principle underlying our criminal justice system: the threat of serious penalties warrants serious procedures.

By examining how the attachment of certain collateral consequences to misdemeanor offenses influences prosecutorial charging decisions in low-level prosecutions, this Article makes two contributions to the scholarly literature.

The first is to enrich our understanding of the various charging options available in a prosecutor's toolbox. Much ink has been spilled--and rightly so--about the strategy known as overcharging. (23) This Article identifies an additional charging tactic that has eluded scholarly attention thus far--a practice I term "strategic undercharging." A prosecutor engages in strategic undercharging when she charges a lesser offense than she otherwise could, but she does so for reasons that advance her own prosecutorial aims and not as an act of grace or leniency. The conventional wisdom, which is rooted in the lessons of overcharging, is that prosecutors file the most severe charges available. (24) This Article complicates that narrative by explaining why, at least in certain contexts, prosecutors will not reflexively file the most serious charge possible. (25) 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.

The second contribution that this Article makes is to shine a light on the relationship between collateral consequences and procedural safeguards. Scholars have thoroughly examined collateral consequences and the right to counsel, including the advice defendants are constitutionally entitled to receive about potential consequences of conviction. (26) But whether potential collateral consequences should impact a defendant's procedural entitlements has escaped sustained scholarly scrutiny. This Article begins to remedy that gap by interrogating the continued wisdom of relying solely on potential imprisonment as the metric for determining the procedural safeguards afforded a defendant.

The Article proceeds in four Parts. Part I provides background information about collateral consequences, their expansion into the universe of misdemeanor offenses, and their relative importance to prosecutors in low-level cases. Part II examines the incentives that lead prosecutors to engage in strategic undercharging when a severe collateral consequence is triggered by a misdemeanor offense. Part III explores some of the ripple effects caused by a decision to file a misdemeanor instead of a felony. Part IV explains why collateral consequences should be considered when determining what procedural safeguards are afforded a defendant.


This Part describes the key role collateral consequences often play in low-level criminal prosecutions. Section A summarizes the distinction between collateral and direct consequences. Section B explains that misdemeanor offenses increasingly trigger significant collateral consequences, thereby eroding the sharp felony-misdemeanor divide that previously existed for collateral consequences. Section C identifies the collateral consequences that have the most salience from the perspective of prosecutors. Finally, Section D describes why prosecutors often view the imposition of one or more collateral consequences as the core objective of many low-level prosecutions.

A. Collateral Consequences vs. Direct Consequences

The legal consequences that flow from a criminal conviction are often divided into two groups: direct and collateral. (27) Although there is some dispute over how to define each category precisely, (28) the best rule of thumb--and the one that the Supreme Court suggests in its landmark decision in Padilla v. Kentucky--is that direct consequences are limited to those matters "within the sentencing authority of the state [or federal] trial court." (29) A collateral consequence, by contrast, is any sanction or disability imposed by law as a result of a criminal conviction that is in addition to the conviction's direct consequences. (30) In other words, collateral consequences "are not part of the explicit punishment handed down by the court; they stem from the fact of conviction rather than from the sentence of the court." (31)

There is general consensus that incarceration, fines, criminal forfeiture, and terms of probation or supervised release are all direct consequences of conviction. (32) Collateral consequences are generally understood to include sex offender registration, civil commitment, civil forfeiture, firearm prohibitions, disenfranchisement, preclusion from juror service, bans on running for public office, disqualification from public benefits (such as public housing or food assistance), ineligibility for business and professional licenses, termination or limitation of parental rights, and--for noncitizen defendants--deportation. (33)

Some collateral consequences are mandatory in nature, whereas others afford the pertinent decision maker some degree of discretion when determining whether to apply them. The former, which are also known as "collateral sanctions," typically apply immediately and automatically upon conviction. See Court Security Improvement Act of 2007 [section] 510(d)(2). Common examples include sex offender registration, disenfranchisement, and firearm prohibitions. Discretionary "disqualifications," on the other hand, involve penalties

The distinction between direct and collateral consequences first gained legal prominence following the Supreme Court's decision in Brady v. United States. (34) Brady established that, in order to comply with the Due Process Clause's voluntariness requirement, a trial court needs to ensure only that a defendant is aware of the "direct consequences" of conviction before entering a guilty plea. (35) In other words, a trial court has no obligation to inform a defendant of a conviction's potential collateral consequences before it accepts the plea as valid.

Although Brady involved only a trial court's constitutional duties during plea colloquies, it reflected a view that later took root in several other criminal law domains: a conviction's collateral consequences do not warrant the same degree of procedural attention as a conviction's direct consequences. (36)

B. The Erosion of the Felony-Misdemeanor Line

The classification of offenses as felonies or misdemeanors has long been a foundational aspect of the American criminal justice system. (37) Among other things, the penalties facing the defendant typically turned on that classification. (38) In most jurisdictions, felonies are defined as offenses that authorize more than one year of imprisonment, whereas misdemeanors are offenses that authorize no more than one year of imprisonment. (39)

Although the line formally dividing felonies and misdemeanors is a prison-centric one, a substantial part of what previously distinguished felonies from misdemeanors was the number and severity of collateral consequences that flowed from a conviction. (40) Until relatively recently, only a felony conviction could trigger the majority of collateral consequences. (41) As Chief Justice Warren observed in 1960, "[c]onviction of a felony imposes a status upon a person which not only makes him vulnerable to future sanctions through new civil disability statutes, but which also seriously affects his reputation and economic opportunities." (42)

Since the 1990s, however, more and more collateral consequences are triggered by misdemeanor convictions. (43) As a result, the sharpness of the distinction between felonies and misdemeanors--at least in terms of post-conviction consequences--has been dulled. (44)

C. Collateral Consequences and Prosecutors

Although scholars have primarily focused on how collateral consequences impact defendants and defense attorneys, (45) these consequences can also play an important role in how prosecutors charge (and later negotiate) a case. Indeed, the National Prosecution Standards promulgated by the National District Attorneys Association, (46) the United States Attorneys' Manual, (47) and the American Bar Association's Criminal Justice Standards (48) all recommend that prosecutors consider potential collateral consequences when making initial charging decisions. (49)

To be sure, prosecutors will not always know every potential collateral consequence facing a defendant when deciding what charges, if any, to file in a given case. (50) But they will know many of them, including several of the most severe ones. This is especially true for those collateral consequences that are automatically triggered by a conviction for a particular offense, and therefore do not vary according to the individual characteristics of the defendant. (51) For example, "a prosecutor will or should know ... which sex offenses lead to registration so that this can be taken into account in the charging decision." (52)

For purposes of deciding what charges to file, prosecutors care about some consequences more than others. For example, prosecutors will be most interested in imposing collateral consequences that further the varied purposes of criminal prosecution, such as deterrence, retribution, rehabilitation, or incapacitation (or some combination thereof). (53) In particular, prosecutors are often animated by a desire to reduce threats to public safety. (54) Collateral consequences that advance that goal are therefore likely to be penalties of particular interest to prosecutors. (55)

Beginning in the 1990s, legislatures greatly expanded the number and availability of collateral consequences that seek to curtail future risks to public safety. (56) Three prominent examples are sex offender registration, firearm prohibitions, and deportation. (57) Each is aimed, at least in part, at reducing threats to public safety. (58) And, critically, each is now triggered not only by certain felony convictions but also by a variety of misdemeanor offenses. (59)

1. Sex Offender Registration

In 1986, four states had laws requiring certain sex offenders to register with law enforcement. (60) Twelve years later, all fifty states and the District of Columbia "had enacted legislation requiring that convicted sex offenders register with the police upon release from prison." (61) The obligation to register as a sex offender typically applies automatically upon conviction of a registerable offense, as defined by the pertinent jurisdiction. (62) Today, the vast majority of jurisdictions include some misdemeanors in their lists of registerable offenses. (63) Registration periods range from fifteen years to life, depending on the jurisdiction and qualifying offense. (64)

2. Firearm Prohibitions

Congress first forbade the possession of firearms by certain criminal offenders in 1938, (65) and eventually prohibited all felons from possessing a firearm in 1968. (66) It did not limit the ability of misdemeanants to possess firearms, however, until 1996. (67) Congress made it unlawful for any person "who has been convicted in any court of a misdemeanor crime of domestic violence" to purchase or possess a firearm that has travelled in interstate commerce. (68) In addition to the federal ban, fifteen states and the District of Columbia currently prohibit the possession of firearms by persons convicted of misdemeanor domestic violence offenses. (69) Firearm prohibitions typically apply automatically and immediately upon conviction of a qualifying offense.

3. Deportation (70)

The laws governing deportation were largely overhauled in the 1990s. (71) Among other things, Congress "increased the number of crimes triggering deportation." (72) Most relevant here, Congress significantly expanded the number of misdemeanor offenses that render a noncitizen deportable. (73) For example, Congress made a conviction for any offense "relating to a controlled substance"--subject to one narrow exception involving minor marijuana possession--automatic grounds for deportation. (74) Congress likewise made a wide swath of offenses involving domestic violence and child abuse grounds for deportation. (75) In short, a large number of "misdemeanors--a category of crimes where those convicted often serve no jail time--can lead to removal." (76) And they often do. (77)

D. Collateral Consequences and Low-Level Prosecutions

To the extent that the current scholarly literature discusses the impact collateral consequences have on prosecutors, it tends to focus on the exceptional case. Commentators often highlight instances in which the prosecutor believes the imposition of a particular consequence is unwarranted, and the prosecutor is then forced to engage in various charging machinations in order to avoid triggering that consequence. (78)

But that is not the typical case. (79) More commonly, the prosecutor thinks the consequence is not only justified but also important. Indeed, for cases involving only low-grade felonies or misdemeanors, securing one of the aforementioned collateral consequences will likely be a key--if not the key--prosecutorial objective. This is true for several reasons.

First, the collateral consequence almost always lasts longer than the defendant's term of incarceration, which for low-level offenders is usually short or nonexistent. (80) For example, the obligation to register as a sex offender lasts for a minimum of fifteen years and often for life. (81) The federal prohibition on firearm possession is a lifetime ban. (82) Similarly, deportation amounts to a permanent exclusion from the United States. As a result, a prosecutor may view a collateral consequence of conviction as her most potent and enduring weapon against future public safety risks. (83)

Second, collateral consequences often expose the defendant to a lengthy incarceration term if he violates the pertinent prohibition, thereby bolstering the consequence's specific deterrent effect. For example, if a defendant fails to register properly as a sex offender, he can be charged with a criminal offense punishable by more than a decade in prison. (84) Similarly, an offender found in unlawful custody of a firearm may be sentenced up to ten years in prison. (85) And a deported person who unlawfully reenters the country can be prosecuted and imprisoned for that reentry. (86) For each of these offenses, establishing a violation is usually straightforward and typically much easier to prove than the underlying offense that triggered the collateral consequence. (87)

Third, many collateral consequences--including two of the three highlighted here--represent a guaranteed penalty upon conviction. In other words, these collateral consequences cannot be circumvented by a sentencing judge, which is significant for prosecutors concerned about controlling the penalties imposed on a defendant. (88) For example, if convicted of a qualifying offense, a defendant will be required to register as a sex offender. Firearm prohibitions work this way, too. Although deportation is not formally guaranteed, a defendant rendered eligible for deportation likely will be removed if he is later detained by Immigration and Customs Enforcement. (89)

In sum, prosecutors will often be attuned to certain collateral consequences that further the goals of criminal prosecution, especially those aimed at reducing threats to public safety. When it comes to low-level offenses, those collateral consequences are often the most important goal of a criminal prosecution. (90)


As detailed in Part I, several collateral consequences of considerable interest to prosecutors are now triggered by misdemeanor convictions. This has meaningfully expanded a prosecutor's charging options. For cases in which imposition of the collateral consequence is a crucial prosecutorial aim, an inability to obtain that consequence through a misdemeanor conviction would effectively force the prosecutor to bring a felony case. The recent attachment of severe collateral consequences to misdemeanor offenses therefore unlocks an array of additional charging options for prosecutors keen on imposing such consequences.

But do prosecutors actually exercise that newfound charging option? In this Part, I explain that there are several reasons why a prosecutor might choose to file a misdemeanor charge instead of a felony charge--that is, why she might engage in strategic undercharging--when a critical collateral consequence is triggered by a misdemeanor conviction. To be clear, I do not claim that prosecutors will choose the misdemeanor option in every case. Rather, my claim is that we should expect prosecutors to file a misdemeanor charge in a significant number of cases and far more often than the conventional wisdom suggests. (91)

The key point is that an offense's collateral consequences, no matter how severe, are generally deemed irrelevant for determining what procedural safeguards apply. In other words, a misdemeanor that threatens a severe collateral consequence is classified the same as any other misdemeanor in a jurisdiction's criminal justice system.

Because misdemeanors are less costly and time-consuming to prosecute than felonies, filing a misdemeanor furthers prosecutorial desires for efficiency. (92) In some cases, the likelihood of conviction is also increased by filing a misdemeanor, and it is generally no less than if a felony were charged. (93) Finally, although prosecutors pursuing a misdemeanor case must surrender the prospect of additional incarceration, the degree of that sacrifice is typically much smaller than one might expect and often not enough to offset the substantial benefits associated with increased efficiency and a higher likelihood of conviction. (94)

A. The Choice

Before examining how prosecutors exercise their charging discretion, it is important to understand who is responsible for the initial charging decision and the lasting impact that decision typically has on a case.

One common practice, especially in larger offices, is to designate a group of prosecutors as having primary responsibility for screening incoming cases and making charging decisions. (95) These prosecutors tend to be relatively senior and most of their time is dedicated to handling the influx of new cases. (96) After the charging decision is made by the screening attorney, the case is then assigned to the pertinent line prosecutor.

Another common practice is for line prosecutors to screen cases on a rotating basis and, if charges are filed, continue to prosecute many of those same cases. (97) For those prosecutors, the process of screening cases is one way new matters are added to their caseload. (98) But those prosecutors do not necessarily keep every case they screen, even if charges are filed. Line attorneys who moonlight as screeners often handle only felony matters. Therefore, if the new matter involves only misdemeanor charges, the case may be assigned to a prosecutor in that office's misdemeanor division.

Of course, the neat division outlined here oversimplifies matters to some degree. Some offices have both groups, whereas others follow a different model altogether. The main point is that the incentives of the prosecutor making the initial charging decision may vary depending on whether she is a dedicated screener or a line attorney doubling as a screener.

Prosecutors enjoy tremendous discretion when deciding what criminal charges, if any, to pursue in a given case. (99) As one leading scholar put it, "[n]o government official in America has as much unreviewable power and discretion as the prosecutor." (100) The Supreme Court has placed few limits on how prosecutors exercise their charging discretion, concluding that a prosecutor's "decision to prosecute is particularly ill-suited to judicial review." (101)

The primary constraint is that the prosecutor must have "probable cause to believe that the accused committed an offense defined by [the applicable] statute." (102) Probable cause, however, is not a particularly demanding standard. The Court has also imposed two other limitations--prohibitions on "selective prosecution" (103) and "vindictive prosecution" (104)--but neither is particularly confining. In short, prosecutors are generally free to exercise their charging discretion, and the "awesome" power such discretion entails, however they please. (105)

Given today's extensive criminal codes, prosecutors will typically have multiple options when choosing how to charge a particular course of conduct. (106) This Article focuses on a prosecutor's decision to file a felony charge or misdemeanor charge. That choice is particularly important. Among other things, this initial decision has a lasting impact: cases usually finish on the same side of the felony-misdemeanor line as where they began. (107)

As Ronald Wright and Rodney Engen detailed in their studies of North Carolina felony prosecutions, prosecutors and defense attorneys in felony cases "treat the felony-misdemeanor line as a major hurdle to cross." (108) According to Wright and Engen, only 25 percent of cases initially charged as felonies end in a misdemeanor conviction. (109) The felony-misdemeanor hurdle is especially high when the jurisdiction's criminal code contains multiple felony grade options for the same core offense. (110) "In these areas of greatest depth," Wright and Engen observed, "the criminal code is structured to make prosecutors especially reluctant to cross the felony-misdemeanor line." (111) They found that when there were three or more felony grade options for an offense, a mere 12 percent of felony cases ended with a misdemeanor conviction only. (112) Similarly, cases that begin as misdemeanor prosecutions rarely turn into felonies. (113)

B. Efficiency Gains

The strongest incentive prosecutors have for pursuing a case as a misdemeanor rather than a felony is that misdemeanors are typically much less costly to prosecute. (114) Prosecutors and their offices have two obvious reasons for wanting to resolve cases as efficiently as possible. (115) First, efficient resolution "free[s] up prosecutors to pursue many more cases," thereby serving the general mission of the office. (116) Second, all prosecutors--but especially those managing bloated caseloads--have "personal incentives to reduce their workloads." (117)

It is therefore unsurprising that several prosecutors I interviewed (118) acknowledged that concerns about resource constraints often play an important role in charging decisions. (119) For example, a sensitivity to resource constraints is one reason why screeners in some prosecutor's offices are required to seek supervisory approval before filing a felony charge, but they are not required to obtain such approval before filing a misdemeanor charge. (120)

Misdemeanors are typically less costly and less time-consuming to prosecute because felony defendants possess a unique bundle of procedural guarantees. (121) Critically, those procedural entitlements do not extend to misdemeanor defendants charged with offenses that trigger serious collateral consequences. As a result, prosecutors can pursue a severe collateral consequence by filing a misdemeanor without triggering the costly procedural safeguards associated with felony prosecutions.

1. Initial Felony Costs: Grand Juries and Preliminary Hearings

A key difference between felony and misdemeanor cases is the costs prosecutors "must shoulder ... immediately" in felony cases, but not in misdemeanor ones. (122) "At the outset of felony cases, prosecutors typically must present witnesses and evidence to establish probable cause to grand juries or to judges at preliminary hearings." (123) Prosecutors have no such obligation in misdemeanor cases, even when a severe collateral consequence is at stake. (124)

The federal government (125) and eighteen states (126) provide criminal defendants the right to have felony charges--but only felony charges--initiated by a grand jury. The remaining states provide prosecutors the option of initiating felony charges either by filing an information or by seeking an indictment from a grand jury. (127) In these jurisdictions, prosecutors overwhelmingly prefer the information option--indicating that, when given the choice, prosecutors tend to avoid the more burdensome grand jury process. (128) In all jurisdictions, prosecutors may initiate misdemeanor cases without proceeding before a grand jury.

To be sure, there are many instances when a prosecutor will happily--even thankfully--invoke the powers of the grand jury for investigatory purposes. But for many more cases, the grand jury requirement is just an additional cost of doing felony business. Even in jurisdictions where grand juries rarely decline to indict, the grand jury requirement still imposes meaningful costs on the prosecutor's office, including the costs related to prosecutor time and grand jury time. Even if one accepts the familiar adage that a prosecutor could get a grand jury to indict a ham sandwich, it is nevertheless the case that a prosecutor would often prefer to charge that ham sandwich by information rather than indictment. And if an office has thousands of ham sandwiches to process, the more that can be charged by information the better.

Where felony cases can be initiated by information instead of indictment, prosecutors must still bear the cost of a preliminary hearing. (129) A preliminary hearing is an adversarial proceeding conducted by a judicial officer relatively early in the adjudicatory process that inquires whether there is probable cause to believe the defendant committed the relevant offense. (130) The government typically needs to establish probable cause in order for the case to proceed any further. (131) In addition to serving as an initial screening mechanism, (132) preliminary hearings often provide valuable information about the prosecution's case to the defense team at a relatively early stage in the life of a case. (133) However, like the right to a grand jury, the right to a preliminary hearing is typically reserved only for felony defendants. (134)

Critically, no jurisdiction appears to consider an offense's potential collateral consequences when determining whether a defendant has a right to a grand jury or a preliminary hearing. As a result, the fact that a misdemeanor may carry a severe collateral consequence does not trigger the initial procedural costs associated with felony prosecutions.
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Title Annotation:Abstract through II. Strategic Undercharging: Why Less Is Sometimes More B. Efficiency Gains 1. Initial Felony Costs: Grand Juries and Preliminary Hearings, p. 775-804
Author:Crane, Paul T.
Publication:William and Mary Law Review
Date:Feb 1, 2016
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