THE USE OF LAY MAGISTRATES IN THE UNITED STATES

By Lars Trautman and SteVon Felton

Every year, police in America conduct over 10 million arrests. Once in the criminal justice system, these individuals face a dizzying series of bail hearings, pretrial conferences, plea deals, trials and in all likelihood, a sentencing. At each of these decision points, nothing less than a person’s freedom hangs in the balance. As such, it may seem a reasonable assumption that the person evaluating the merits of the case and applying the law will be an experienced jurist with a trained legal mind. And yet, in some places that person may not have even gone to college, let alone passed the bar exam or practiced law. Instead, many Americans find their fates in the hands of a motley assortment of officials serving as front-line judicial officers or in courts of limited jurisdiction. Whatever the moniker attached, these magistrates have the right to deprive an individual of her freedom through a collection of powers such as the ability to set bails, issue warrants and sometimes even preside over certain criminal trials themselves. While their decisions are subject to review by more traditionally educated and legally trained judges, in our messy, overburdened criminal justice system, this is often too little, too late. Appellate review, for example, is of limited value to a person already placed in pretrial detention, and is of even less value to a person who has chosen a guilty plea to avoid an even longer period of incarceration. Moreover, unlike the lawyers who practice before them, these magistrates do not face any universal requirements or tests like the bar exam. Indeed, while the increasing complexity of our laws and a greater appreciation for the awesome power that judges wield led to higher professional standards over the last century for most other judicial offices and the legal profession as a whole, the same is not true for these magistrates. Despite holding many of the same judicial powers and facing the same set of byzantine procedural rules and complex case law as other judges, they are often able to take the bench with only minimal legal training or education. Accordingly, what follows is an examination of these magistrates. It will begin by describing the four primary categories of lay officials that hold judicial powers of detention, the scope of their powers and their qualifications. Next, it will explain how their authority over the front end of the criminal justice process and misdemeanors can give them outsized, if sometimes underappreciated, power. It will then discuss why the use of nonlawyers in these roles and other minimal qualifications currently in use are particularly concerning. And finally, it will consider what minimum standards jurisdictions should adopt in order to ensure that their magistrates are able to effectively and equitably serve as the gatekeepers of the criminal justice system.

R STREET POLICY STUDY NO. 173 May 2019

Washington, DC: R Street, 2019. 13p.