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
