The Meaning of a Misdemeanor in a Post-Ferguson World: Evaluating the Reliability of Prior Conviction Evidence

Despite evidence that America’s low-level courts areoverburdened, unreliable, and structurally biased,sentencing judges continue to uncritically consider adefendant’s criminal history in fashioning anappropriate punishment. Misdemeanor courts lackmany of the procedural safeguards that are thought toensure accuracy and reliability. As with other stages ofthe criminal justice system, people of color and poorpeople are disproportionately burdened with theinaccuracies of the misdemeanor system.This Article examines instances in which sentencingcourts have looked behind the mere fact of a priorconviction and assessed whether that prior convictionoffered any meaningful insight for the subsequentsentence. This Article then proposes a framework bywhich defendants should be allowed to challenge the useof prior conviction evidence in the sentencing context,arguing that the government should bear the burden ofpersuasion once the defendant sufficiently satisfies aburden of production.

Ultimately, however, this Articlesuggests that courts and legislatures considercategorical exemptions from the use of priormisdemeanor convictions in imposing sentences. Failureto critically examine this evidence risks introducing andcompounding the biases and errors of low-level courtsinto more serious sentencing proceedings.