ABA releases guidelines on prosecuting misdemeanor cases

The Queens Criminal Courthouse. Photo via the Queens DA’s Office

By Victoria Merlino

The American Bar Association has released new guidelines for how prosecutors should negotiate plea agreements for misdemeanor charges with unrepresented individuals, noting that misdemeanor charges have increased in communities of color.

Misdemeanor charges make up around 80 percent of state criminal dockets, according to statistics cited in the ABA opinion. The ABA estimates that that figure has doubled since 1972.

In New York City, there were 271,630 misdemeanors recorded in 2018, according to NYPD data.

The majority of defendants charged with misdemeanors plead guilty at their initial court appearance, but, the ABA noted, they often do not realize the repercussions of the plea. The defendants may not understand the impact that a criminal record will have on their daily lives, including employment prospects and access to public services, the ABA said.

“Notwithstanding the commitment of most prosecutors to high professional standards, there is evidence that in misdemeanor cases where the accused is or may be legally entitled to counsel, methods of negotiating plea bargains have been used in some jurisdictions that are inconsistent with the duties set forth in the Rules of Professional Conduct,” the ABA wrote.

The opinion said that certain plea bargaining practices — such as intimidating or confusing defendants out of their right to counsel, allowing investigators to act as prosecutors and not informing defendants of their right to counsel — are simply not acceptable.   

“A prosecutor must ... avoid offering, negotiating and entering pleas on terms that knowingly misrepresent the consequences of acceptance, or otherwise improperly pressure, advise or induce acceptance on the part of the unrepresented accused,” the ABA wrote.

The ABA also reiterated that prosecutors have an obligation to seek justice rather than simply secure a conviction, and that they should be following rules outlined in ABA Model Rules of Professional Conduct, which includes the responsibility of the prosecutor to ensure the defendant is aware of the right to counsel.