Misdemeanors ‘Kicked Up’ to Felonies, Article Critique Example

The article in question is, “Misdemeanors ‘Kicked Up’ to Felonies,” written by Bruce T. Cunningham, Jr. and Amanda Zimmer, both from the Law office of Bruce Cunningham. The main topic is a double jeopardy argument where misdemeanors ‘kicked up’ to felonies trigger increased sentencing laws such as the Armed Career Criminal Act (ACCA) or the three strikes rule. The main question of the article is if the act of kicking up misdemeanors to felonies is in fact constitutional, or if it actually causes a subject to be punished for the same crime twice. Cunningham, Jr. and Zimmer conclude their argument with the belief that presentation of a case directly addressing this issue would result in the decision that “misdemeanors cannot be ‘kicked up’ to felonies” based on foundation laid from previous related cases. (Cunningham Jr., 2009) The intended audience for this article is the authors’ peers, other attorneys and those within the legal profession. A secondary audience would be law and criminal justice students.

The article begins by quoting from two different cases, Johnson v. United States and McDonald v. Massachusetts, and presents three propositions to be examined during the article: that prior convictions can only serve to increase the punishment of the crime; that recidivism, repeated relapse of crime, cannot be considered an element of crime; that all similar cases must be subject to recidivism on an equal level. Background on the case of Johnson v. U.S. covers the original federal case of U.S. v. Johnson where Curtis Johnson was convicted of being a felon in possession of ammunition. Based on prior convicted misdemeanors, Johnson’s misdemeanor was ‘kicked up’ to a felony and then found to be eligible for increased sentencing under the ACCA. Johnson objected and appealed the decision based on the assertion that his conviction was not a violent felony and so did not qualify for increased ACCA sentencing. Cunningham, Jr. and Zimmerman present double jeopardy considerations using a number of cases: North Carolina v. Pearce, Parke v. Rale, Graham v. West Virginia, Moore v. Missouri, McDonald v. Massachusetts, and Brown v. Ohio. The case of United States v. Cheek is used to support the proposition that prior convictions cannot be considered elements of crime. Apprendi v. New Jersey is used to define a crime for constitutional purposes. The authors discuss circumstances specific to their area of practice in North Carolina, the implications for hybrid statues, and mention California’s ‘wobblers’.    

A strength of this article is the amount of relevant information presented. The material is well-researched and organized, the argument well laid out. A weakness of the article surrounds the ‘violent felony’ statements. Why would it not be so that after upgrading the misdemeanor to a felony, felony rules labeling the battery as violent would not apply? What is the definition for violent felony? What are the requirements for a felony to be labeled as violent? What laws, rulings, statutes, prevent a misdemeanor ‘kicked up’ to a felony from then being subject to felony type definitions that qualify it as a violent felony? Another weakness of the article may be the introduction of California’s sentencing law of ‘wobblers’. The importance of ‘wobblers’ to the author’s central argument may not have been developed enough to show how this aspect of sentencing law fits into the argument.

This is a tough issue to tackle. I agree with the authors on the point that increased sentencing for recidivism can result in a double jeopardy situation. Though it is a new crime that brings the individual in front of the court, it is the fact of conviction of previous crimes that adds to the initial sentence for the new crime. Though the previous crimes are considered for sentencing only and not discussed during the trial, that they play a part in sentencing at all seems like double jeopardy. So for me, the next question is how do we punish recidivism without committing double jeopardy?

References

Cunningham Jr., B. a. (2009). Misdemeanors ‘Kicked Up’ to Felonies. Federal Sentencing Reporter , Vol. 22, No. 2.