Common Law in Action: the Prosecution of Felonies and Misdemeanors*

This paper draws attention to the common-law distinction between felonies and misdemeanors. It asks whether this distinction, when drawn on the level of formal criminal procedure, has its counterpart on the informal level, in the use of different criteria to decide whether and how to prosecute the defendant. Analysis of data from the District of Columbia indicates that the felony-misdemeanor distinction clearly conditions the role of both legally relevant and irrelevant factors, but not in the simple straightforward way initially hypothesized. The paper concludes with a discussion of the empirical and theoretical implications of the findings.