Infamous Misdemeanors and the Grand Jury Clause

Infamous Misdemeanors and the Grand Jury Clause

By Gabriel J. Chin & John Ormonde. Full text here.

Under an overlooked body of constitutional law, many more federal offenses must be prosecuted by grand jury indictment than is now the practice. Current rules provide that felonies must be prosecuted by grand jury indictment, but misdemeanor charges may be based on a prosecutor’s information, or even a ticket issued by a law enforcement officer. However, serious consequences fall on people convicted of federal misdemeanors, including deportation, sex offender or other criminal registration, ineligibility for public benefits, and loss of civil rights. In the late nineteenth and early twentieth century, the Supreme Court held in a series of cases, never overruled, that to charge an infamous misdemeanor required a grand jury indictment. The Court held that infamous offenses were ones potentially resulting in stigmatizing punishments degrading the offender’s status, indicating that the person is less than a full member of the community. These include corporal punishment, incarceration in a prison or penitentiary (as opposed to a jail), loss of civil rights or imposition of civil disabilities, and convictions implying moral turpitude. Many federal misdemeanors carry these consequences. And, once charged, federal misdemeanors are much more likely than felonies to be dismissed outright instead of proceeding to trial or plea. More thoughtful evaluation of misdemeanor cases would likely result in prosecutors or grand juries terminating cases, pre-charge, instead of waiting until after charges have been filed. As a result, thousands of Americans would avoid the stigma of a criminal record where it is unwarranted. This is what the Framers of the Constitution intended.