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Anything But Petty

Misdemeanors are major sources of overcriminalization and punishment. Requiring jurors to screen them could shake up the system.


In the hierarchy of criminal prosecutions and penalties, so-called petty offenses sit at the very bottom. Compared to felonies and other offenses deemed serious, petty offenses don’t attract nearly as much attention from academics, policymakers, and reform advocates, perhaps because their very name suggests insignificance. Yet petty offenses play an underappreciated role in maintaining our overly punitive criminal system. As many legal scholars have noted, petty offenses can impose punishing collateral consequences in the employment, immigration, and family contexts, to name a few realms outside of the criminal law, in ways that can follow them for years and aren’t readily grasped at the time of arrest or conviction. These low-level charges also constitute a major entry point into the criminal legal system, particularly for communities of color.­­

Around 10 million state defendants and over 70,000 federal defendants are prosecuted each year for misdemeanors, and those cases have a magnifying effect on future criminal prosecutions. Misdemeanor convictions are used to deny bail, to impeach defendants who testify, and to enhance sentences, fueling our system of mass incarceration. Such minor cases also often involve the most conspicuous abuse of criminal law to tackle problems that would be better addressed through other systems.

Increased jury involvement, which the Constitution contemplates, in reviewing petty cases could help bring a much-needed community voice to an under-scrutinized part of the criminal system. This analysis is straightforward. The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right to . . . trial, by an impartial jury.” Similarly, Article III mandates that the trial of “all crimes, other than impeachment, shall be by jury.” The criminal jury right is centuries old, and its routine violation by King George III was one of the primary grievances listed in the Declaration of Independence

Despite the clear text and ostensible importance of these guarantees, most people facing criminal charges in the United States are denied a jury. Under what is known as the petty offense doctrine, the jury right applies only to crimes carrying a potential jail sentence of six months or more. This doctrine originated in 19th-century Supreme Court dictum that relied largely on Blackstone’s Commentaries and the Founding-era practice of allowing certain offenses deemed “petty” by Parliament or colonial charters to be summarily tried by a justice of the peace. Yet the existence of these controversial summary bench trials — which Blackstone himself condemned — could just as naturally be read as inspiring the Framers’ decision to guarantee a jury in “all” criminal prosecutions.

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How “all criminal prosecutions” and “all crimes” became only some prosecutions for some crimes is the focus of this essay, which is based on critiques of the doctrine that the two of us independently wrote about in the last year. Our work explains why the petty offense doctrine is not only untenable as a matter of text and history, but also must be abandoned in practice so that communities have a direct say in the criminal process and act as a check in the operation of laws that for so long have been used against their own.

Mangling Text and History

The idea that we should interpret what the Constitution means by looking to what its words meant to people in 1791 is a controversial one. This philosophy, sometimes called “originalism,” was most famously championed by the late Justice Antonin Scalia and has been embraced by at least three current Supreme Court justices. Originalism is not popular among progressive law reformers; in his newly released Worse Than Nothing: The Dangerous Fallacy of Originalism, legal scholar Erwin Chemerinsky argues that originalism is flawed because the Framers themselves wanted the Constitution to be flexible; that the Framers’ “original intent” is nearly impossible to discern; and because the methodology disguises results-oriented judging in the cloak of restraint.

Though neither of us identifies as an originalist, we think that where an individual right against government power is explicitly guaranteed by clear constitutional text, it should be enforced as written, rather than interpreted based on judges’ policy considerations or views of the overall purpose underlying a right. Moreover, when the government denies a fundamental constitutional right based on a flawed interpretation of text and history, progressive reformers should call this out, regardless of whether they themselves believe text and history are the most important guides to interpreting the Constitution.

With that understanding, the jury right in “all criminal prosecutions” is one of those fundamental rights that is clearly and explicitly guaranteed, and the petty offense doctrine rests on a misreading of text and history.

The doctrine originated in the 1888 case Callan v. Wilson, in which the Supreme Court held that the constitutional right to jury applied to a criminal extortion charge in the District of Columbia. In dictum — that is, language that was not part of the court’s ultimate holding — the justices posited that the result would have been different had the offense been “petty.” The court based this dictum on two premises: that the word crime at the Founding, while sometimes used broadly to mean a violation of “public law,” was also sometimes used narrowly to mean a “serious or atrocious” offense; and that the Framers were aware of the English and colonial practice of allowing justices of the peace to summarily try, without a jury, offenses labeled as “petty” or “summary” by Parliament. Since Callan, as our articles explain, the exception has become entrenched in federal and state case law, even as the issue has remarkably never been fully litigated in a case in which the issue mattered to the result.

There are several reasons that the petty offense doctrine’s alleged textual and historical justifications were flawed from the start. First, the Supreme Court’s reliance on a narrow definition of “crime” as only covering “serious” offenses was based on selective quoting of Blackstone. While Blackstone did note that “crime” can be used both broadly and narrowly, he dedicates an entire section to summary convictions for petty offenses, describing “courts of criminal jurisdiction” as “includ[ing] petty sessions and justices of the peace.” In fact, Blackstone condemned these summary trials, stating that “if a check be not timely given,” such cases “threaten the disuse of our admirable and truly English trial by jury.”

Other Founding-era and later dictionaries and treatises, while likewise acknowledging that “crime” can be used colloquially in multiple ways, used the terms “criminal” and “prosecution” broadly. For example, Samuel Johnson’s 1755 English dictionary defined “criminal” broadly: “1. Faulty; contrary to right; contrary to duty; contrary to law. . . . 2. Guilty; tainted with crime; not innocent. . . . 3. Not civil; as a criminal prosecution.” State legislatures also assumed petty offenses were crimes; for example, as one of us found, a 1732 colonial New York law allowing summary trials for certain minor offenses explicitly described such offenses as “criminal.” As explained in our research, numerous courts and commentators in the early days of the Republic also described summarily tried petty offenses as crimes and criminal prosecutions. Indeed, the Supreme Court itself, in determining that contempt is a crime, has broadly described “crime” as “in the ordinary sense, a violation of the law, a public wrong which is punishable by fine or imprisonment or both.” Ultimately, if one looks for guidance to the plain meaning of “crime” or “criminal prosecution,” whether at the Founding or now, it surely includes at a minimum misdemeanors prosecuted in criminal court and carrying potential jail time.

Second, treating jail-punishable misdemeanors prosecuted in criminal court as anything other than “criminal prosecutions” would make little sense given the text of other constitutional provisions. For starters, the other rights listed in the Sixth Amendment — to confrontation, to know the nature and cause of the accusation, to the correct vicinage, to public trial, to speedy trial, and to compulsory process — have all been deemed applicable to petty offenses. Likewise, the Supreme Court has applied Miranda rights to petty misdemeanors, consistent with the Fifth Amendment right against self-incrimination in “any criminal case.”

On the other hand, when the Framers wanted a provision to apply only to certain crimes, they explicitly said so — as in the Fifth Amendment right to indictment by grand jury only in a “capital, or otherwise infamous crime.” Moreover, it is hard to imagine that the same drafters who guaranteed the right to jury trial in all civil legal cases with more than $20 at stake would deny a jury in criminal cases where a serious fine or imprisonment was at stake. Notably, the categorical language of Article III and the Sixth Amendment, and most of the original states, also stand in contrast to the few state constitutions whose jury right extended only to crimes that had “heretofore” been jury-demandable (New York) or that were “infamous” (Massachusetts).

Third, there is no reason to assume that the Framers intended to maintain the English and colonial practice of allowing summary trials for certain offenses deemed “petty” by Parliament. As explained in greater depth in one of our articles, the practice was quite controversial, condemned not only by Blackstone but by many judges and commentators — among them Charles James Fox, the Whig Party leader, archrival of George III, and correspondent of Benjamin Franklin and John Adams. Meanwhile, plenty of other constitutional provisions offered guarantees above and beyond what existed in England at the time, including the right to counsel in felony cases, the right of compulsory process, and the right of self-representation.

Ultimately, the right to a jury in “all crimes” and in “all criminal prosecutions” is one of those sufficiently clear textual guarantees of a significant individual liberty that its failure to be enforced literally is conspicuous. Regardless of what one thinks of “progressive originalism,” courts should recognize that the few proffered textual and historical justifications offered for the petty offense doctrine are unpersuasive on their own terms.

Lastly, as far as racial justice is concerned, there is a disturbing irony to this discussion of what counts as “crimes” and “criminal.” On the one hand, what counts as a crime is and has always been a social construct. For example, we get to decide that alcohol distribution is legal but cocaine distribution is not; that terminating one’s pregnancy is legal or not; that driving on a suspended license is a crime rather than an administrative infraction. The broad way we construct crimes has never been neutral in its effect on marginalized communities. And yet, in determining whether those same communities have a right to a jury to decide their fate, courts take a narrow view of crime that allows harsh but invisible punishments of those same marginalized communities.

The Decarceral Potential of Juries in Petty Cases

In turn, a categorical right to jury trial in petty misdemeanors holds the potential to improve criminal outcomes. First, making it categorical would render the right to jury trial less arbitrary, subject to the vagaries of different courts and cases. Under current law, defendants in New York and Washington, D.C. have successfully argued that misdemeanors leading to deportation are sufficiently “serious” to merit a jury trial regardless of their potential sentence length. While the reasoning of these courts is sound, they have left us with a subjective, fact-specific jury right analysis that leads to different results based on the idiosyncrasies of each defendant. A categorical approach would be easier to administer, more logical, and more equitable.

Second, a right to jury trial in petty criminal cases could help overcome what is now an “adversarial deficit” in bench trials by offering a better check on police and prosecutorial abuses. The absence of the community from the process of deciding who should be  convicted and punished has altered the architecture of adjudication and shielded its excesses from oversight. Low-level criminal cases are precisely the kinds of cases where juries might be most likely to acquit in cases of police or prosecutorial overreach. Knowing that their decisions would be reviewed by a jury and the public may well alter law enforcement and prosecutors’ decisions to make arrests or to initiate prosecutions. Juries could better discipline other actors in the system and act as a check on the worst abuses. For example, a jury right could put an end to procedural irregularities of petty misdemeanor illegal entry prosecutions along the southern border, where massive groups of defendants (sometimes 50 or more) are arraigned, plead guilty, and are sentenced before a magistrate all in one day. Having a right to jury might also encourage more defendants to go to trial, period, meaning that police and prosecutorial abuses are more likely to be scrutinized because more defendants would litigate, and be able to appeal the denial of, motions to suppress illegally obtained evidence.

Third, such a right would allow a community voice in the factfinding process, both for interpreting the facts based on their diverse life experiences and bringing the power of nullification to cases that, in the jury’s view, should not have been brought. Ironically, the need for such equitable discretion is often greatest in minor offenses. For example, injecting juries into disorderly conduct prosecutions might help counter the state’s use of such prosecutions to exert social control over people living with mental illness (or perceived as such) or traditionally marginalized racial groups. It is also no coincidence that federal lawmakers reduced the maximum penalty for illegal entry from 12 to six months precisely to remove the jury trial right, out of concern that community members in southern border districts were too often acquitting based on disagreement with federal immigration policy. One could imagine juries having a meaningful factfinding or equitable role in other cases, too. Imagine, for example, an unhoused person facing a charge of unlawful entry into a parking garage, an undocumented immigrant facing an unlicensed driving or illegal entry charge, a person facing a charge of marijuana possession in a jurisdiction where it is still illegal under state law, or a person facing a simple assault charge with a viable self-defense claim that is likely to be more sympathetic to a local jury than a judge.

Fourth, recognizing all misdemeanors as jury-demandable could reduce the bloat of misdemeanor court and eliminate cases that should never be brought in the criminal system by making misdemeanor prosecutions more time-consuming, with no lesser option to pursue through plea bargaining. A system of 10 million misdemeanor cases would crash if defendants insisted on their right to trial, and many more defendants would do so if they knew a jury of their peers would judge the case. In turn, reducing the overall number of prosecuted misdemeanors would reduce the number of people brought into the criminal system in general, allowing other systems such as administrative regulation or public health to enforce laws without leading to collateral consequences such as deportation or loss of public housing or employment opportunities for minor offenses.

Addressing Anticipated Concerns

One concern about enforcing a jury right in petty cases is the high cost of doing so, especially in state courts. To be sure, federal prosecutors argued against a recent proposal to statutorily expand the jury right in misdemeanors in Washington, D.C., on grounds that there are too many misdemeanors to make such a right practicable. But the answer to that sort of “too much justice” concern is to restore charging practices to what they were before misdemeanor court was so expansive. Or, as criminologists Norval Morris and Gordon Hawkins argued to the White House over 40 years ago, the answer might lie in developing an “administrative law of crime” to deal with minor offenses.

Moreover, many states already enforce a statutory or state constitutional right to jury trial in many petty cases or even juvenile cases, which suggests that such a right is practicable. Of course, the fact that misdemeanor convictions become rarer does not mean that misdemeanor arrests would be rare; arguably, the heart of the misdemeanor system is not the adjudicatory process but the post-arrest pretrial conditions and “marking” a person must endure even if their case is eventually dismissed. But for someone who is falsely accused or simply should not be prosecuted, an arrest is better than a conviction, and perhaps police and prosecutorial practices in the shadow of a jury trial would be less aggressive overall.

Another concern might be that such a right would be meaningless, turning into just another bargaining chip in plea negotiations that defendants are forced to waive or even leading perversely to more punitive sentencing regimes or charging practices. While critical race theory scholars have persuasively argued that certain enhanced procedural rights might simply legitimate overly punitive outcomes, we think the jury right in minor cases would matter. Even as a bargaining chip, the right might offer defendants who plead guilty — or who agree to a bench trial in exchange for lenience — a discount more accurately calibrated to the rights they give up. Moreover, because the “trial penalty” in petty misdemeanors for declining a plea offer is relatively less severe (no more than six months of potential jail time), many defendants might choose not to waive the right and take their chances at trial, emboldened by the presence of a jury.

Finally, some might argue that a jury right is not meaningful until juries themselves become more diverse. We agree that juries, like judges, are woefully nondiverse, but we think the answer is not to give up on juries, whether in felonies or misdemeanors. Instead, we can hopefully improve the diversity of juries through reforms such as new laws in California and Washington removing several race-correlated bases for peremptory strikes, as well as continuing to push for reforms of laws that disenfranchise people with criminal convictions.

The ostensible text- and history-based justifications for the petty offense doctrine are untenable, and the categorical language of Article III and the Sixth Amendment guaranteeing a jury in all criminal prosecutions — not just serious ones — should be enforced. In turn, juries would have much to add to the misdemeanor system, from offering a better check on abusive practices to bringing a community voice to factfinding. The struggle to reinvigorate the right to trial by jury and abolish the petty offense doctrine can be taken up by public defenders on a case-by-case basis, by courts interpreting this right, and by legislatures that could provide a broader jury right by statute. Restoring the right to a jury of one’s peers in petty misdemeanors has a significant role to play in the national discourse on decarceration and racial justice.

Image: Chenjack/Flickr