WASHINGTON (May 28, 2019) – The complexity of our legal system and the high stakes of criminal cases lead most people to assume that the person deciding whether someone walks free or gets jailed will be a member of the American Bar Association. Yet, in 37 states, no bar admission or law degree is required to occupy an assortment of judicial and quasi-judicial positions that hold the authority to incarcerate someone. Indeed, in many instances these individuals may take office with little more than a high school diploma and a few hours of general legal training.

In a new policy study, R Street Criminal Justice and Civil Liberties Senior Fellow Lars Trautman argues that while magisterial discretion is usually confined to the early stages of a criminal case or to lower-level offenses, magistrates nevertheless hold outsized power in the criminal justice system. With most cases resolving well short of trial and early decisions calcifying over time, a magistrate’s ability to rule first can be just as consequential as ruling last. Likewise, because even short jail stays can cause significant disruption and harm to defendants, limited sentencing authority is incredibly powerful.

Trautman finds that the formidable power of magistrates makes their current lack of legal training a cause for significant concern. “Legalese” is not a native tongue; translating facts into legal conclusions requires intensive study and a broad base of legal knowledge, which must be regularly updated in response to ongoing legal developments. As such, it is unlikely that an amateur can correctly complete magisterial tasks on a consistent basis. States that persist in allowing individuals to make these decisions without meaningful legal training or experience shortchange justice.

Trautman concludes that “with an arrest occurring once every three seconds in the United States and magistrates called to adjudicate the freedom of many of these individuals, the remaining states need to follow suit and professionalize their magistrates. The power of magistrates is simply too awesome to leave in untrained hands.”