Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts

Most individuals accused in our nation\u27s criminal courts are not charged with murder, rape, drug sales, or even less serious felonies. The vast majority of charges are in the lower courts, for misdemeanors such asmarijuana possession, driving with a license suspension for failure to pay tickets, assault, disorderly conduct, or public intoxication. Misdemeanor adjudications have exploded in recent years, with one recent study estimating that the volume of misdemeanor cases nationwide has risen from five to more than ten million between 1972 and 2006. At the same time, violent crime and the number of felony cases across the country have decreased markedly. A common misperception is that misdemeanor charges might lead to a night in jail and the punishment of going through the process - often requiring a number of court appearances - culminating in dismissal, deferred adjudication, or a quick guilty plea with community service, a fine, or perhaps some small amount of jail time. Yet the consequences of even the most minor misdemeanor conviction can be far reaching, and include deportation, sex offender registration, and loss of public housing and student loans. In addition, criminal records are now widely available electronically and employers, landlords, and others log on to check them.These collateral consequences of a misdemeanor conviction are often more dire than any direct criminal penalty. What often stands between an individual and an avoidable misdemeanor conviction, with its harsh effects, is a good lawyer. Yet a profound crisis exists in the lower courts, brought about by a widespread lack of zealous representation for indigent people charged with misdemeanors. Many individuals charged with low-level crimes receive representation from defense attorneys with overwhelming caseloads, in a criminal justice system singularly focused on rapid finality in the large numbers of docketed cases. Despite this urgent situation, the body of scholarship on the right to effective representation and the indigent defense crisis has largely ignored misdemeanors. This Article describes how ineffective assistance jurisprudence is undeveloped for misdemeanors and how published professional standards for defense advocacy have failed to address misdemeanors. There is almost no guidance about proper norms for this distinct category of cases. This Article calls for responses to themisdemeanor representation crisis from the three groups situated to make a difference in this area based on their particular institutional competencies: the judiciary, the defender community, and professional organizations that draft standards for practice. Without proper administration, including effective defense representation, the currentapproach to mass misdemeanor processing and prosecution significantly impedes substantive justice for the individual, public perception of justice, and public safety