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The Use of Lay Magistrates in the United States: Powers and Qualifications, Lecture notes of Law

An in-depth analysis of the role and powers of lay magistrates in the United States, focusing on their qualifications and training requirements. The study covers various types of magistrates, including mayoral courts, justice of peace courts, and nonjudge court personnel with judicial powers. It also discusses the importance of magistrates and recommendations for fixing the system.

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THE USE OF LAY MAGISTRATES
IN THE UNITED STATES
By Lars Trautman and SteVon Felton
INTRODUCTION
Every year, police in America conduct over 10 million
arrests.1 Once in the criminal justice system, these
individuals face a dizzying series of bail hearings,
pretrial conferences, plea deals, trials and in all like-
lihood, a sentencing. At each of these decision points, noth-
ing 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.2
Instead, many Americans find their fates in the hands of
a motley assortment of officials serving as front-line judi-
cial officers or in courts of limited jurisdiction. Whatever
1. Federal Bureau of Investigation, “Persons Arrested,” U.S. Dept. of Justice, Fall
2017. https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/
persons-arrested.
2. See, e.g., Governor Charles Baker, “Executive Order no. 558,” Commonwealth of
Massachusetts, Feb. 5, 2015. https://www.mass.gov/files/documents/2016/09/rv/
eo-558.pdf.
R STREET POLICY STUDY NO. 173
May 2019
CONTENTS
Introduction 1
Lay Magistr ates in the Unite d States 2
Town and Municipal C ourts 2
Justices of th e Peace 2
Nonjudge C ourt Personnel with J udicial Powers 3
Mayoral Cou rts 3
The Impor tance of Magistrates 4
The Lastin g Power of First Impression s 4
Short Pretr ial Jail Stays Can Have Outsize d Impact 4
Limited Sente ncing Authority is Still Wid e Discretion 5
The System’s Legiti macy Rests on its Magi strates 5
Fixing the System 6
Recommend ed Minimum Qualific ations and Trainin g 6
Conclusion 7
About the Authors 8
Appendix A : Nonlawyer Magistrate s—Powers 8
Appendix B : Nonlawyer M agistrates—Qualifi cations 10
the moniker attached,3 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 them-
selves. 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 com-
plexity of our laws and a greater appreciation for the awe-
some 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 mag-
istrates. It will begin by describing the four primary catego-
ries 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 con-
cerning. And finally, it will consider what minimum stan-
dards jurisdictions should adopt in order to ensure that their
3. For simplicity’s sake, all of these officials will hereafter be referred to as “magis-
trates,” unless referring to a particular subset of these officials.
R STREE T POLICY ST UDY: 2019 THE USE OF L AY MAGISTR ATES IN THE UNI TED STATES 1
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THE USE OF LAY MAGISTRATES

IN THE UNITED STATES

By Lars Trautman and SteVon Felton

INTRODUCTION

E

very year, police in America conduct over 10 million
arrests.^1 Once in the criminal justice system, these
individuals face a dizzying series of bail hearings,
pretrial conferences, plea deals, trials and in all like-
lihood, a sentencing. At each of these decision points, noth-
ing 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.^2
Instead, many Americans find their fates in the hands of
a motley assortment of officials serving as front-line judi-
cial officers or in courts of limited jurisdiction. Whatever
  1. Federal Bureau of Investigation, “Persons Arrested,” U.S. Dept. of Justice, Fall
  2. https://ucr.fbi.gov/crime-in-the-u.s/2016/crime-in-the-u.s.-2016/topic-pages/ persons-arrested.
  3. See, e.g., Governor Charles Baker, “Executive Order no. 558,” Commonwealth of Massachusetts, Feb. 5, 2015. https://www.mass.gov/files/documents/2016/09/rv/ eo-558.pdf. R STREET POLICY STUDY NO. 173

May 2019

CONTENTS
Introduction 1
Lay Magistrates in the United States 2
Town and Municipal Courts 2
Justices of the Peace 2
Nonjudge Court Personnel with Judicial Powers 3
Mayoral Courts 3
The Importance of Magistrates 4
The Lasting Power of First Impressions 4
Short Pretrial Jail Stays Can Have Outsized Impact 4
Limited Sentencing Authority is Still Wide Discretion 5
The System’s Legitimacy Rests on its Magistrates 5
Fixing the System 6
Recommended Minimum Qualifications and Training 6
Conclusion 7
About the Authors 8
Appendix A: Nonlawyer Magistrates—Powers 8
Appendix B: Nonlawyer Magistrates—Qualifications 10
the moniker attached,^3 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 them-
selves. 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 com-
plexity of our laws and a greater appreciation for the awe-
some 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 mag-
istrates. It will begin by describing the four primary catego-
ries 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 con-
cerning. And finally, it will consider what minimum stan-
dards jurisdictions should adopt in order to ensure that their
  1. For simplicity’s sake, all of these officials will hereafter be referred to as “magis- trates,” unless referring to a particular subset of these officials.
magistrates are able to effectively and equitably serve as the
gatekeepers of the criminal justice system.

LAY MAGISTRATES IN THE UNITED STATES

Thirty-seven states allow individuals without a law degree
to make detention decisions in at least some criminal cases.
These states authorize individuals serving in a variety of
roles with little more than a high school diploma and less
than a week’s worth of training to make critical criminal jus-
tice decisions. While each state’s grant of authority is unique,
these officials largely fall into four categories: town and
municipal court judges, justices of the peace, nonjudge court
personnel with judicial powers and mayoral court judges.

Town and Municipal Courts

Sixteen states still allow nonlawyer judges to preside over at
least some of their town or municipal courts. These courts
generally serve two roles: to oversee criminal cases deriv-
ing from transgressions against local law, and to conduct ini-
tial proceedings for more serious crimes. They usually have
jurisdiction from case inception to sentencing over cases
involving all local ordinances as well as certain misdemean-
ors and traffic violations within a particular municipality or
township. In addition, they often have the ability to conduct
bail and other preliminary hearings relating to more serious
misdemeanors and felonies before transferring these cases
to superior courts.^4
In four of these states, whether a law degree is required to
serve on a town or municipal court is a question of popula-
tion. In these states, in any jurisdiction with a population
under an established threshold, individuals are only required
to obtain a high school degree to serve on a town or munici-
pal court. Although often this threshold is only five to ten
thousand residents, these numbers can quickly add up across
municipalities into the tens and even hundreds of thousands
statewide.
Perhaps due to the local nature of municipal and town courts,
states have largely avoided setting qualification requirements
for these judges in statute. Instead, each municipality or town
is generally able to devise their own standards, and state-
wide requirements remain sparse. Only four of the 16 states
with nonlawyers serving in their municipal or town courts
require a statewide certification exam of any kind.^5 Similarly,
the educational requirements to assume office rarely appear
in statute; to the extent they are listed, the minimum require-
  1. See, e.g., Miss. Code § 21-23-7 (2017).
  2. Kan. Stat. § 12-4114 (2017); Miss. Code § 9-11-3 (2017); Montana Judicial Branch. https://leg.mt.gov/bills/mca/title_0030/chapter_0100/part_0020/sec- tion_0020/0030-0100-0020-0020.html; S.C. Code § 22-1-10 (2017).
ments involve high school or an equivalent degree. Although
states have likewise tended not to address initial credit-hour
training requirements, almost all of these states require by
law or court rule at least some minimal number of continu-
ing education hours to maintain the position of judge, though
usually this averages only 10-15 hours per year.

Justices of the Peace

In 14 states, individuals without a law degree may preside
over a justice of the peace, magistrate or alderman’s court
(hereinafter, simply “justice of the peace” court). These
courts are a special class of limited jurisdiction courts that
have long been a pivotal part of justice in towns and villag-
es across the United States. During the early stages of the
American court system, justices of the peace needed only to
be a “well-informed citizen;” and the courts acted in various
criminal justice capacities, including assessing fines, issuing
warrants and trying cases.^6 In the modern era, these courts
typically continue to give their judicial officers wide-ranging
powers over a set of lower-level criminal offenses. Whereas
municipal and city courts largely enforce city-specific ordi-
nances, justice of the peace courts often focus on laws at the
county level or state misdemeanor criminal offenses.
Of all the courts investigated, this category is closest to a tra-
ditional court in terms of its concentration of powers. Gener-
ally, justices of the peace have the greatest authority of any
limited jurisdiction court to oversee preliminary hearings
and set bail, issue warrants, and conduct trials and sentenc-
ings for misdemeanors and traffic cases. Indeed, of the 14
states with lay justices of the peace, only Louisiana does not
empower its justices of the peace to hear and try misdemean-
ors. Similarly, a little over half of these states allow their jus-
tices of the peace to preside over preliminary hearings and
all except Arizona authorize these justices to issue warrants.
Among these states, only South Carolina requires a bach-
elor’s degree to serve as a justice of the peace,^7 with seven
other states mandating high school and the rest remaining
silent on the issue of education. All of these states, however,
require the completion of at least some form of training pro-
gram to serve as a justice of the peace. These requirements
range from only 24 hours to 160 hours of training, and in
some states, judges may have as long as two years to com-
plete them. The continuing education requirements for these
judges likewise range dramatically from as little as a single
course each year to as much as 80 hours over a two-year
  1. Matt Ford, “When Your Judge Isn’t A Lawyer,” The Atlantic , Feb. 5 2017. https:// www.theatlantic.com/politics/archive/2017/02/when-your-judge-isnt-a-law- yer/515568.
  2. S.C. Code § 22-1-10 (2017).

THE IMPORTANCE OF MAGISTRATES

The Lasting Power of First Impressions

Magisterial authority is disproportionately placed at the
front end of the judicial process, representing a considerable
leverage point from which to exert influence over the crimi-
nal justice system. As the first judicial officials to scrutinize
cases and evidence, their decisions help to establish the sta-
tus quo. In concert with pervasive cognitive biases and a jus-
tice system that tends to calcify initial decisions and resolve
cases early, ruling first can be indistinguishable from ruling
last. As such, though magistrates may be junior members of
the judiciary, they are among its most powerful.
Particularly when it comes to bail, magisterial decisions can
be hard to shake. After all, the trial judge or any other superi-
or judge to whom a defendant might appeal for a more man-
ageable bail does not get to approach the issue in a vacuum.
Regardless of the legal rules of a jurisdiction about the stan-
dard of review or an individual judge’s desire to consider the
matter with fresh eyes, the decision will likely be skewed to
some degree by powerful psychological traps.
Human beings do not evaluate their options de novo – that
is, what has come before or exists presently, almost inevi-
tably shapes our decisions on what should come next. We
have a marked and significant preference for whatever we
perceive to be the existing state of affairs.^25 This status quo
bias is supported by an associated inclination to favor omis-
sion over action, which in turn disproportionately benefits
that same status quo.^26 This preference is due in part to a
reduced sense of agency—choosing to do nothing does not
even seem like a choice at all, making us feel less responsible
for the outcome.^27
When a choice involves numerical values, another cognitive
effect can take hold: anchoring. In evaluating a numerical
choice, people tend to place undue influence on a reference
number, selecting a value that is closer to that figure than
would otherwise be merited.^28 In the judicial context, studies
have suggested that judges may use a variety of anchors in
  1. William Samuelson and Richard Zeckhauser, “Status Quo in Decision Making,” Journal of Risk and Uncertainty 1 (March 1988), p. 8. https://sites.hks.harvard.edu/fs/ rzeckhau/status%20quo%20bias.pdf.
  2. See, e.g., Ilana Ritov and Jonathan Baron, “Status-Quo and Omission Biases,” Journal of Risk and Uncertaint y 5 (February 1992), pp. 49-61. https://www.sas.upenn. edu/~baron/papers.htm/sq.html.
  3. Ibid.
  4. Amos Tversky and Daniel Kahneman, “Judgment Under Uncertainty: Heuristics and Biases,” American Association for the Advancement of Science 185:4157 (Sept. 27, 1974), pp. 1124-31. http://www.its.caltech.edu/~camerer/Ec101/JudgementUncertainty. pdf.
decisions such as criminal sentencing and damage awards.^29
Even unrelated numbers like a street address, once entered
into the narrative, can skew the resulting choices toward
them.^30
It is not hard to see how these biases could work to confound
an objective review by a judge of a magistrate’s decision to
place bail at a particular dollar amount. Upholding the mag-
istrate’s bail represents an omission that maintains the sta-
tus quo, a particularly cognitively pleasing outcome. Even
if a judge overcomes these subconscious biases, anchoring
makes it more likely that any new bail determination will
still be subtly tied to the original. A high bail may come down,
but not nearly as low as if the judge had been able to write
it on a clean slate.
A magistrate’s initial bail is thus resilient to change and resis-
tant to significant alteration. Indeed, this is exactly what data
from Harris County, Texas has shown. A report found that
judges there altered the magistrate-set bail only about six
percent of the time, and lowered it in less than one percent of
cases.^31 Another study in Maryland discovered that the initial
bail set by its district court commissioners was changed less
than a quarter of the time.^32

Short Pretrial Jail Stays Can Have Outsized

Impact

A magistrate’s ability to set a lasting bail amount can have
a powerful rippling effect as well, particularly if it results
in an individual’s pretrial detention. Jail is an isolating and
unpleasant place. Consequently, defendants held prior to
trial have greater difficulty preparing their cases and face
intense pressure to consider options that might end their
incarceration sooner, even if it comes with a set of collateral
consequences.
This combination has been borne out by research that shows
defendants in pretrial detention are more likely to plead
  1. Jeffrey J. Rachlinski et al., “Can Judges Make Reliable Numeric Judgments? Dis- torted Damages and Skewed Sentences,” Indiana Law Journal 90:695 (Spring 2015), pp. 695-739. https://scholarship.law.cornell.edu/cgi/viewcontent.cgi?referer=https:// www.google.com/&httpsredir=1&article=2552&context=facpub.
  2. Jeffrey J. Rachlinski and Andrew J. Wistrich, “Judging the Judiciary by the Numbers: Empirical Research on Judges,” Annual Review of Law and Social Science 13:203-229 (October 2017), p. 19. https://scholarship.law.cornell.edu/cgi/viewcontent. cgi?article=2668&context=facpub.
  3. Megan Flynn, “Too Poor to Bail Out? Tough Luck In Harris County,” Houston Press , Dec. 15, 2015. https://www.houstonpress.com/news/too-poor-to-bail-out-tough-luck- in-harris-county-7998306.
  4. Jean Chug, “Bailing on Baltimore: Voices from the Front Lines of the Justice System,” Justice Policy Institute, September 2012, p. 4. http://www.justicepolicy.org/ uploads/justicepolicy/documents/bailingonbaltimore-final.pdf.
guilty than similarly situated ones that were released.^33 In
addition, this group receives longer sentences on average^34
and is more likely to recidivate after the conclusion of their
sentence.^35 As such, it is clear that a bail decision is about
more than just bail or a defendant’s immediate freedom.
Not only are future reviews of magisterial decisions likely
skewed in their favor, but many decisions may never even be
subject to oversight in the first place. This is because around
97 percent of federal convictions and 94 percent of state
convictions are the result of a guilty plea.^36 While some of
these are “conditional” or otherwise allow for future appel-
late review of legal issues, overwhelmingly they represent
the end of the case and all attendant controversies. In these
instances, the initial determinations of the magistrate, how-
ever erroneous, will stand uncontested—yet another monu-
ment to their enduring influence over the justice system.

Limited Sentencing Authority is Still Wide

Discretion

When a magistrate has the power to not only set the stage
for a conviction but also to oversee the trial or sentencing,
the weight of magisterial choices is even greater. Although
such discretion is usually confined to low-level offenses,
this may actually do relatively little to curtail their potential
impact. Many of these ordinances and misdemeanors still
raise the specter of immediate incarceration ranging from
thirty days to a year for each conviction. This represents
more than enough time in jail to emotionally and physically
scar an individual as well as throw employment and child-
care obligations on the outside into chaos. Additionally, the
imposition of only a fine can still ultimately rob a defendant
of his freedom, given that many states continue to see incar-
ceration as a valid final step in the debt collection process.^37
While incarceration is the clearest example of how a magis-
trate’s sentence can deprive an individual of freedom, a host
of collateral consequences ensures that even once an indi-
vidual is freed—or was never incarcerated to begin with—
the quality of that freedom is degraded. Collectively, states
have thousands of legal prohibitions that curtail the ability
  1. Megan Stevenson “Distortion of Justice: How the Inability to Pay Bail Affects Case Outcomes,” George Mason Legal Studies Research Paper No. LS 18-30, February 2019, pp. 1-40. http://home.ubalt.edu/id86mp66/PTJC/SymposiumReadings/Distortion-of- Justice_Stevenson.pdf.
  2. Marian R. Williams, “The Effect of Attorney Type on Bail Decisions,” Criminal Justice Policy Review 28:1 (December 2014), p. 3–17. http://journals.sagepub.com/doi/ full/10.1177/0887403414562603.
  3. Arpit Gupta et al., “The Heavy Costs of High Bail: Evidence from Judge Random- ization,” Journal of Legal Studies 45:2 (June 2016), pp. 471-505. http://www.columbia. edu/~cjh2182/GuptaHansmanFrenchman.pdf.
  4. Missouri v. Frye , 566 U.S. 134 (2012).
  5. Matthew Shaer, “How Cities Make Money by Fining the Poor,” The New York Times , Jan. 8, 2019. https://www.nytimes.com/2019/01/08/magazine/cities-fine-poor-jail. html.
of individuals with a criminal record to partake in all manner
of valued activities, including entering various professions,
living in certain places and volunteering in some capacities.^38
These black-letter legal barriers are coupled with the attach-
ment of a pervasive social stigma and bias, which can make it
difficult to secure even those jobs still available to individuals
with a criminal record and make more general reintegration
back into society even more difficult to achieve.

The System’s Legitimacy Rests on its Magistrates

In addition to the concrete impact that magisterial deci-
sions have on those within the criminal justice system, they
can leave a lasting impression on perceptions of the system
itself. With the majority of cases ending well before trial, it
is the magistrate and not the trial judge who has been at the
center of the most momentous court actions for a significant
number of individuals. Likewise, the kinds of low-level cases
over which magistrates preside represent the most common
criminal justice experience, since misdemeanor cases make
up roughly 80 percent of criminal dockets.^39 These two facts
ensure that magistrates are one of the most frequently viewed
faces of the system, placing much of its legitimacy in the eyes
of the public in their hands.^40 If magistrates are perceived as
knowledgeable and fair, then the criminal justice system writ
large will be—if they are not, the whole system suffers.
A narrower problem of legitimacy arises in the context of
mayoral courts, which concentrate an incredible amount of
power in one individual. A mayor presiding over one of these
courts simultaneously holds executive, legislative and judi-
cial powers. She may have a vote (or veto) over the enactment
of an ordinance, power over its enforcement and discretion
over whether it has been violated and what the penalty ought
to be. This is the kind of situation against which American
government’s separation of powers doctrine is intended to
insulate. It also raises inherent conflict-of- interest ques-
tions. For example, the fines assessed in a mayoral court
might go into government coffers that the presiding mayor
oversees. It is easy to see how defendants facing one of these
tribunals might question the impartiality of the justice they
will receive.^41
  1. See, e.g., “National Inventory of Collateral Consequences of Conviction” database: https://niccc.csgjusticecenter.org.
  2. Terry Gross, “‘Punishment Without Crime’ Highlights The Injustice Of America’s Misdemeanor System,” NPR , Jan. 2, 2019. https://www.npr. org/2019/01/02/681606995/punishment-without-crime-argues-that-americas-mis- demeanor-system-targets-the-poo.
  3. See e.g., “Plea Negotiations and Plea Agreements,” Oklahoma County, p. 131. https://www.oklahomacounty.org/DocumentCenter/View/784/Plea-Negotiations- PDF?bidId.
  4. Indeed, in Ward v. Village of Monroeville , 490 U.S. 57 (1972), the U.S. Supreme Court raised exactly these conflict-of-interest and impartial-justice concerns as they ruled a defendant was denied due process in front of an Ohio mayoral court. While this may have curbed some of the more excessive conflicts, the continued use of mayoral courts suggests that the ruling was not enough to entirely quell the practice or the issues it raises.
must be required prior to a magistrate assuming the bench—
grace periods such as in North Carolina or Georgia still allow
potentially unqualified magistrates to rule on cases.^46 These
courses, however, could be included as part of ongoing legal
training meant to shore up fundamental legal concepts and
respond to developments in the law. Montana and South
Carolina provide another interesting method of ensuring
continued magisterial competence that other jurisdictions
may want to consider: requiring all magistrates to retest their
legal knowledge every four and eight years, respectively.
When it comes to mayoral courts, there should be no half
measures. Vesting so much judicial authority in an executive
branch official offends our separation of powers and raises
the risk of conflicts of interest to unacceptable levels. Even if
these courts are run with diligence and integrity, the appear-
ance of potential impropriety is so great as to undermine
their legitimacy and recommend their abolition. Further,
there is simply no need for these courts; they do not have any
unique capabilities or functions that could not easily be sub-
sumed by the purely judicial courts present in these states.
States should likewise eliminate the qualification disparity
between urban and rural jurisdictions. Whether the individ-
ual ruling on your freedom understands the law should not
turn on whether the county you happen to be in has crossed
an arbitrary population threshold. In some of these less pop-
ulated areas, it may be possible to do away with the local
magistrate altogether and have the rare case that would oth-
erwise cross her path diverted to whichever court handles
more serious cases. To the extent a magistrate is still neces-
sary in these places, instead of lowering the bar for judges,
states should allocate funding or create other incentives to
help attract and retain qualified candidates.
Similarly, states should pay particular attention to the lack
of standards for nonjudge court personnel who hold judi-
cial powers. While most states require their municipal court
judges and justices of the peace to engage in at least some
minimal initial and ongoing training, the same is not true
when it comes to these other officials. Though their pow-
ers are generally more limited than other magistrates, these
nonjudge court personnel nevertheless make detention deci-
sions for thousands of Americans each year and states ignore
their legal qualifications at their peril.
Increasing magisterial qualification requirements in these
states is entirely feasible; after all, these same states often
operate exacting licensing regimes for all manner of profes-
sions with a lot less responsibility and power than magis-
trates. For example, while Georgia only demands its high-
school-educated magistrates complete 80 hours of legal
  1. NC Gen Stat § 7A-177 (2016). https://law.justia.com/codes/north-carolina/2016/ chapter-7a/article-16/section-7a-177; GA Code § 15-10-137 (2017). https://law.justia. com/codes/georgia/2017/title-15/chapter-10/article-8/section-15-10-137.
training within two years of assuming office,^47 it requires
dieticians to be college educated and complete 900 hours
of coursework.^48 Likewise, although North Dakota relaxes
its magistrate requirements in towns with fewer than 5,
residents,^49 no similar exemption helps cosmetologists in
those same towns who must still complete 1,800 hours of
training.^50 This is not to suggest that these other licensing
requirements are justified—for the most part, they are not—
but rather to show that any arguments that higher magiste-
rial standards are impossible are, at best, misguided.

CONCLUSION

One of the most fearsome powers of government is its ability
to deprive its citizens of their liberty, and one of the primary
purposes of our laws is to ensure that this authority is exer-
cised only with precision and restraint. This combination
ensures that the decision of whether to detain an individual
is both weighty and difficult. This is true even when we cir-
cumscribe when and where someone may wield the power to
detain. As a result, any with whom we entrust this authority
must have qualifications and training commensurate with
the task.
Too many magisterial standards fail to ensure that this is the
case. Requirements that stop short at local residency and a
high school diploma do not go far enough to certify the legal
aptitude of a prospective magistrate. Likewise, training that
can be completed months or even years after an individu-
al assumes the bench does not do enough to safeguard the
rights of those who face these magistrates prior to that point.
The law is too difficult and the stakes too high to leave to
chance a magistrate’s ability to wrestle with these complex
and weighty decisions.
Raising these standards for magistrates is by no means an
impossible task. Indeed, states as different as Rhode Island
and Idaho already mandate bar admission for all magis-
trates.^51 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.^52
The power of magistrates is simply too awesome to leave in
untrained hands.
  1. Ga. Code § 15-10-137 (2017).
  2. “Dietitians: Frequently Asked Questions,” Georgia Secretary of State, 2018. http:// sos.ga.gov/index.php/licensing/plb/19/faq.
  3. N.D. Century Code Chapter 40-18.
  4. N.D. Century Code Chapter 43-11.
  5. R.I. Gen. Law 8-2-39 (2017); Idaho Fourth Judicial District Court, “Magistrate Court.” https://fourthjudicialcourt.idaho.gov/ada/magistrate.html.
  6. Rebecca Neusteter and Megan O’Toole, “Every Three Seconds,” Vera Institute of Justice, January 2019. https://www.vera.org/publications/arrest-trends-every-three- seconds-landing/arrest-trends-every-three-seconds/overview.
ABOUT THE AUTHORS
Lars Trautman is a senior fellow of criminal justice and civil liber-
ties policy at the R Street Institute. His research focuses primarily
on reforms that impact our nation’s jails and the front end of the
criminal justice system. He previously served as an assistant district
attorney in Essex County, Massachusetts.
SteVon Felton writes on policing, perceptions of law enforcement,
over-criminalization and barriers to reintegration for formerly
incarcerated individuals. Earlier in his career, he worked to support
research efforts at ACLU-DC and the Institute for Policy Studies.

Bail Issuance of Warrants^ Preliminary Hearings Misdemeanors Ordinance Violations Traffic Statutes MAYORAL COURTS Ohio (Mayor's Court) X X X Ohio Rev. Code § 1905.01 (2017) Louisiana (Mayor's Court) X X X La. Rev. Stat. § 33:441 (2017) JUSTICE OF THE PEACES Arizona (Justice Court) X X X Ariz. Rev. Stat. § 22-301 (2017) Delaware (Alderman Court) X^ X 21 Del. Code § 708 (2017), 11 Del. Code § 4503 (2017), 11 Del. Code § 5303 (2017) Delaware (Justice of the Peace Court) X^ X^ X^ X^ X^ 11 Del. Code § 2702 (2017), 11 Del. Code §§ 5901-5917 (2017) Georgia (Magistrate Court) X^ X^ X^ Ga. Code § 15-10-2 (2017) Louisiana (Justice of the Peace Court) X^ X^ X^ La. Rev. Stat. § 13:2586 (2017) Mississippi (Justice Court) X^ X^ X^ X^ X Miss. Code § 99-33-1 (2017), Miss. Code § 9-11-15 (2017), Miss. Code § 99-3-21 (2017), Miss. Code § 99-5-11 (2017) Montana (Justice of Peace Court) X^ X^ X^ Mont. Code § 3-10-118 (2017), Mont. Code § 3-10-303 (2017) Nevada (Justice Court) X X X Nev. Rev. Stat. § 4.370 (2017), Nev. Rev. Stat. § 4.3762 (2017) New Mexico (Magistrate’s Court) X^ X^ X^ X^ X^ X^ N.M. Stat. § 35-3-4 (2017) Pennsylvania (Magisterial District Judges) X^ X^ X^ X^ X^ 42 Pa. Cons. Stat. § 1513 (2017), 42 Pa. Cons. Stat. § 1515 (2017) Oregon (Justice Court) X X X X X Or. Rev. Stat. § 51.050 (2017), Or. Rev. Stat. § 51.070 (2017), Or. Rev. Stat. § 133.020 (2017), Or. Rev. Stat. § 133.030 (2017) South Carolina (Magistrate’s Court) X^ X^ X^ X S.C. Code § 22-5-10 (2017), S.C. Code § 22-5-510 (2017), S.C. Code § 22-5-320 (2017), S.C. Code § 22-3-540 (2017) Texas (Justice Courts) X X X X Tex. Gov. Code § Title 2-Subtitle A-Chapter 27 (2017), Tex. Gov. Code § Title 1-Article 2.09 (2017), Tex. Gov. Code § Title 1-Chapter 15 (2017), Tex. Gov. Code § Title 2-Subtitle A-Chapter 17 (2017) Utah (Justice Court ) X X X X Utah Code § 78A-7-106 (2017), Utah Code § 78-20-1 (2017), Utah Code § 77-1-3 (2017), Utah Code § 77-7-5 (2017) West Virgina (Magistrate Court) X^ X^ X^ X^ W.Va. Code § 50-2-3 (2017)

APPENDIX A: NONLAWYER MAGISTRATES—POWERS

New Mexico (Municipal) X X X X N.M. Stat § 35-14-2 (2017), N.M.R.A. Rule 8- New York (Town and Village Justice Court) X^ X^ X^ X^ N.Y. Const. Art. VI § 17, N.Y. C.P.L.

North Dakota (Municipal) X X X N.D.C.C. 40-18-01 (2017) Oklahoma (Municipal) X X Okla. Stat. § 11-27-103 (2017) Oklahoma (Special District) X^ X^ X^ Okla. Stat. § 20-123 (2017) Oregon (Municipal) X X X X X Or. Rev. Stat. 221.339 (2017), Or. Rev. Stat. 135.280 (2017), Or. Rev. Stat. 133.030 (2017), Or. Rev. Stat. 135.245 (2017) South Carolina (Municipal) X^ X^ X^ S.C. Code § 14-25-45 (2017) Texas (Constitutional County Courts) X^ X^ Tex. Code § Title 2-Subtitle A-Chapter 26 (2017) West Virgina (Municipal) X X W.Va. Code § 8-10-1 (2017), W.Va. Code § 8-10-2 (2017) Wisconsin (Municipal) X X Wis. Stat. § 755.045 (2017), Wis. Stat. § 800.02 (2017) Wyoming (Municipal Court) X^ X^ X^ X Wyo. Stat. § 5-6-201 (2017), Wyo. Stat. § 5-6-202 (2017), Wyo. Stat. § 5-6-301 (2017), Wyo. Stat. § 5-6-109 (2017) Education Initial Training Grace Period Ongoing Training Exam Population Threshold Statutes and Rules MAYORAL COURTS Ohio (Mayor's Court) Unaddressed in statute 12 hours N 6 Hours N Ohio Rev. Code § 1905.03 (2017), Ohio Rev Code § 1905.031 (2017), Ohio Mayors Court Rules 3 and 4 Louisiana (Mayor's Court) Unaddressed in statute^ Unaddressed in statute N Unaddressed in statute N La. Rev. Stat. § 33:384 (2017) JUSTICES OF THE PEACE Arizona (Justice Court) Unaddressed in statute^ Unaddressed in statute N 16 hours annually N Ariz. Rev. Stat. § 22-122 (2017), Arizona Code of Judicial Administration 1- Delaware (Alderman Court) Unaddressed in statute Unaddressed in statute N/A^ Unaddressed in statute N^ See e.g., Del. Code 49-21A Delaware (Justice of the Peace Court) Unaddressed in statute 11 weeks^ N^ 24 hours over 2 years N Del. Const., Article IV, §§ 29 & 30, Del. Code tit. 10 § 9210 (2017), Delaware Rules for Continuing Legal Education 4(a) and 4(c) (2016) Georgia (Magistrate Court) HS^ 80 hours over 2 years 2 years Unspecified (delegated to Georgia Magistrate Courts Training Council) N Ga. Code § 15-10-22 (2017), Ga. Code § 15-10-137 (2017) Louisiana (Justice of the Peace Court) HS^ One training course 6 months^ One course annually N^ La. Rev. Stat. § 13:2582 (2017), La. Rev. Stat. § 49:251.1 (2017) Mississippi (Justice Court) HS^ 80 hours^ N^ 24 hours annually^ Y Miss. Code § 9-11-3 (2017), Miss. Code § 9-11-4 (2017), Miss. Const. § 171 Montana (Justice of Peace Court) Unaddressed in statute One training course As soon as practicable 2 annual training conferences ( hours) Y (within 6 months, and every 4 years thereafter) Mont. Code § 3-10-204 (2017), Mont. Code § 3-10-203 (2017), Mont. Code § 3-1-1502 (2017), Mont. Commission on Courts of Limited Jurisdiction

APPENDIX B: NONLAWYER MAGISTRATES—QUALIFICATIONS

Nevada (Justice Court) HS 2 weeks "N* 24 month grace for Ethics course" 13 hours N 100, Nev. Rev. Stat. § 4.010 (2017), Nev. Rev. Stat. § 4.035 (2017), Supreme Court of Nevada Administrative Office of the Courts Judicial Education Policies New Mexico (Magistrate’s Court) HS^ One training course 45 days^ 1 course annually (12 hours) N^ 200, N.M. Stat. § 35-2-1 (2017), N.M. Stat. § 35-2-3 (2017), N.M. Stat. § 35-2-4 (2017) Oregon (Justice Court) Unaddressed in statute^ One training course 12 Months 30 hours every 2 years N Or. Rev. Stat. § 51.240 (2017), Or. Rev. Stat. § 51.245 (2017) Pennsylvania (Magisterial District Judges) Unaddressed in statute 160 hours^ N^ 32 hours annually^ Y 42 Pa. Cons. Stat. § 3101 (2017), 42 Pa. Cons. Stat. § 3112 (2017), 42 Pa. Cons. Stat. § 3113 (2017), 42 Pa. Cons. Stat. § 3118 (2017) South Carolina (Magistrate’s Court) Bachelor's^ One training course 12 Months^ 18 hours annually^ Y S.C. Code § 22-1-10 (2017), S.C. Code § 22-2-5 (2017), S.C. Supreme Court Rule 510 Texas (Justice Courts) Unaddressed in statute 80 hours 12 Months 20 hours annually N Tex. Code § Title 2-Subtitle A-Chapter 27 (2017) Utah (Justice Court ) HS Orientation seminar (unspecified length) N 24 hours annually N Utah Code § 78A-7-201 (2017), Utah Code § 78A-7-205 (2017), U.C.J.A. Rule 14- West Virgina (Magistrate Court) HS Unspecified course of instruction N 30 hours every two years N W. Va. Code § 50-1-4 (2017), W. Va. Judicial Disciplinary Procedure Rule 7. NONJUDGE COURT PERSONNEL WITH JUDICIAL POWERS Alabama (District & Municipal Magistrate) Delegated by statute to state supreme court (unaddressed by court rule) One training course 12 months (district court), 6 months (municipal court) Unspecified N Ala. Rule of Jud. Admin. 18, Ala. Code § 12-17-251 (2017) Alaska (Deputy Magistrate) Delegated by statute to state supreme court (unaddressed by court rule) Unspecified training on duties by a judge N Unaddressed in statute N Alaska Stat. § 22.15.160 (2017), Alaska Court Rule 19.2 (2017) Connecticut (Bail Staff/ Police) Unaddressed in statute Unaddressed in statute N/A^ Unaddressed in statute N^ N/A Maine (Bail Commissioner) Unaddressed in statute One bail training program 12 months Unspecified N 15 Me. Rev. Stat. § 1023 (2017) Maryland (District Bail Commissioner) Unaddressed in statute Unaddressed in statute N/A^ Unaddressed in statute N^ Md. Cts. & Jud. Pro. Code § 2- (2017) Massachusetts (Clerk) Unaddressed in statute^ Unaddressed in statute N/A Unaddressed in statute N See, Mass. Exec. Ord. 558 Michigan (District Magistrate) Unaddressed in statute Unspecified course required for traffic powers No Unaddressed in statute N Mich. Comp. Laws 600.8507, Mich. Comp. Laws 600. Nebraska (Clerk) HS Unspecified, must comply with court rules N/A Unspecified, must comply with court rules N Neb. Code § 24-508 (2017) New Hampshire (Bail Commissioner) Unaddressed in statute Unaddressed in statute N/A^ One meeting annually N^ N.H. Rev. Stat. 597:17, N.H. Rev. Stat. 597:18a North Carolina (Magistrate) Waived upon 8 years relevant experience 40 hours 6 Months Unspecified in statute (12 hours every 2 years by court rule) N N.C. Gen. Stat. § 7A-171.2 (2017), N.C. Gen. Stat. § 7A-177 (2017), Conference of Chief District Court Judges North Dakota (Magistrate) Unaddressed in statute Unaddressed in statute N/A^ One course every 2 years N^ N.D. Admin. Rule 20 South Dakota (Clerk Magistrate) HS One "institute" on duties of magistrate N Unaddressed in statute N S.D. Codified Laws § 16-12C- 2 (2017), S.D. Codified Laws § 16-12C-3 (2017)

South Carolina (Municipal) Unaddressed in statute One training course 12 Months^ 14 hours annually Y (within 12 months and every 8 years thereafter) S.C. Code § 14-25-15 (2017), S.C. Supreme Court Rule 510 Texas (Constitutional County Courts) Unaddressed in statute 30 hours^ 12 Months^ 16 hours annually^ N Tex. Code § Title 2-Subtitle A-Chapter 26 (2017), Tex. Rules of Judicial Education Rule 2 West Virgina (Municipal) Unaddressed in statute^ One training course Next available 30 hours every 2 years N W.Va. Code § 8-10-2 (2017), W.Va. Judicial Disciplinary Procedure Rule 7. Wisconsin (Municipal) Unaddressed in statute^ One training course Next available 4 hours annually N Wis. Stat. § 755.18 (2017), Wis. Supreme Court Rule 33 Wyoming (Municipal Court) Delegated by statute to municipalities Unaddressed in statute N/A^ Unaddressed in statute N^ Wyo. Stat. § 5-6-103 (2017)