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46 Hofstra L. Rev. 171 (2017-2018)
Informed Misdemeanor Sentencing

handle is hein.journals/hoflr46 and id is 179 raw text is: INFORMED MISDEMEANOR SENTENCING Jenny Roberts* I. INTRODUCTION There is no such thing as a low-stakes misdemeanor. The deceptive thing about misdemeanor sentencing is that the punishment the judge actually imposes in court is not the main event, in the long run.' As many people find out long after they exit the courthouse, a misdemeanor conviction-indeed, even a dismissed misdemeanor charge-is a mark that follows them into their work and home lives for decades, and sometimes for the rest of their lives.' A misdemeanor conviction can lead to the inability to continue working as a home health aide even after * Professor of Law, Associate Dean for Scholarship, and Co-Director, Criminal Justice Clinic, American University, Washington College of Law. With many thanks to the participants in the Criminal Justice Ethics Schmooze 2017, Clinical Law Review Writer's Workshop, and CrimFest! 2017, in particular Randy Hertz, JD King, Noelle Lyle, Sunita Patel, Jessica Roth, Meghan Ryan, Ron Wright, Ellen Yaroshefsky, and Theresa Zhen. Thanks as always to Mary Holland and Juliet Stumpf, and to Eugene Mok and Alissa Kalinowski for excellent research assistance. 1. Although the actual misdemeanor sentence imposed can be quite significant. In Maryland, for example, assault in the second degree is a misdemeanor that encompasses the common law crimes of intent to frighten, attempted battery, and battery and that carries a sentence of up to ten years imprisonment. See MD. CODE ANN., CRIM. LAW §§ 3-201(b), -203(b) (LexisNexis 2017); Pryor v. State, 6 A.3d 343, 357 (Md. Ct. Spec. App. 2010). Further, judges can do harm in sentencing even on relatively minor offenses. Michael Peters, CJC No. 04-1044-CC (Tex. Comm'n on Judicial Conduct May 4, 2006) (noting that a judge was disciplined for ordering a woman convicted of animal abuse to thirty days in jail with three days of bread and water and a man convicted of illegally dumping toxic torts to drink toxic sludge). 2. Issa Kohler-Hausmann, Managerial Justice and Mass Misdemeanors, 66 STAN. L. REV. 611, 617-18 (2014) (Rather than rely on evidence of guilt in the individual case at hand, misdemeanor courts sort defendants based largely upon records of prior encounters.); Devah Pager, The Mark of a Criminal Record, in CRIME AND CRIMINAL JUSTICE 937, 960-62 (William T. Lyons, Jr., ed., 2006); Gary Fields & John R. Emshwiller, As Arrest Records Rise, Americans Find Consequences Can Last a Lifetime, WALL ST. J. (Aug. 18, 2014, 10:30 PM) http://www.wsj.com/articles/as-arrest-records-rise-americans-find-consequences-can-last-a-lifetime- 1408415402; Gary Fields & John R. Emshwiller, Fighting to Forget: Long After Arrests, Criminal Records Live On, WALL ST. J. (Dec. 25, 2014, 10:30 PM), http://www.wsj.com/articles/fighting-to- forget-long-after-arrests-records-live-on- 1419564612.

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