Publication Date



Despite evidence that America’s low-level courts are
overburdened, unreliable, and structurally biased,
sentencing judges continue to uncritically consider a
defendant’s criminal history in fashioning an
appropriate punishment. Misdemeanor courts lack
many of the procedural safeguards that are thought to
ensure accuracy and reliability. As with other stages of
the criminal justice system, people of color and poor
people are disproportionately burdened with the
inaccuracies of the misdemeanor system.
This Article examines instances in which sentencing
courts have looked behind the mere fact of a prior
conviction and assessed whether that prior conviction
offered any meaningful insight for the subsequent
sentence. This Article then proposes a framework by
which defendants should be allowed to challenge the use
of prior conviction evidence in the sentencing context,
arguing that the government should bear the burden of
persuasion once the defendant sufficiently satisfies a
burden of production. Ultimately, however, this Article
suggests that courts and legislatures consider
categorical exemptions from the use of prior
misdemeanor convictions in imposing sentences. Failure
to critically examine this evidence risks introducing and
compounding the biases and errors of low-level courts
into more serious sentencing proceedings.