Denial of the right to counsel in misdemeanor courts
A report released last Tuesday by the National Association of Criminal Defense Lawyers (NACDL) provides an in-depth examination of the state of misdemeanor courts across the country and particularly the denial of defendants' Sixth Amendment right to counsel in these courts. It is long but it is worth reading by anyone with an interest in criminal law, and hopefully it will find its way to the right lawmakers and judges.
In Argersinger v. Hamlin, in 1972, the United States Supreme Court held that defense counsel must be appointed in any criminal prosecution, “whether classified as petty, misdemeanor, or felony, that actually leads to imprisonment even for a brief period.” In Scott v. Illinois, in 1979, the Court held that counsel does not have to be appointed if the defendant is fined only, and is not sentenced to jail time. In 2002 in Alabama v. Shelton, the Court reaffirmed the rule that, “absent a knowing and intelligent waiver, no person may be imprisoned for any offense …unless he was represented by counsel at his trial,” holding that even when a defendant receives a sentence of imprisonment suspended to probation, he must be afforded the right to counsel.
The NACDL report spends a lot of time discussing the huge caseloads that are placed on public defenders in these courts, which, coupled with a lack of funding, results in incompetent (and unethical) representation of indigents. While researching for this report, they also discovered that in South Carolina, you do not get an attorney if you are charged in the magistrate or municipal courts - judges and prosecutors will flat-out say, you are not entitled to an attorney and you must represent yourself. In the words of the Chief Justice of our state supreme court, who has instructed our magistrates not to provide counsel to indigents:
Alabama v. Shelton [is] one of the more misguided decisions of the United States Supreme Court, I must say. If we adhered to it in South Carolina we would have the right to counsel probably … by dragooning lawyers out of their law offices to take these cases in every magistrate’s court in South Carolina, and I have simply told my magistrates that we just don’t have the resources to do that. So I will tell you straight up we [are] not adhering to Alabama v. Shelton in every situation.
From the introduction of the NACDL report:
NACDL’s comprehensive examination of misdemeanor courts, including a review of existing studies and materials, site visits in seven states, an internet survey of defenders, two conferences, and a webinar, demonstrated that misdemeanor courts across the country are incapable of providing accused individuals with the due process guaranteed them by the Constitution. As a result, every year literally millions of accused misdemeanants, overwhelmingly those unable to hire private counsel, and disproportionately people of color, are denied their constitutional right to equal justice. And, taxpayers are footing the bill for these gross inefficiencies.Legal representation for misdemeanants is absent in many cases. When an attorney is provided, crushing workloads often make it impossible for the defender to effectively represent her clients. Counsel is unable to spend adequate time on each of her cases, and often lacks necessary resources, such as access to investigators, experts, and online research tools. These deficiencies force even the most competent and dedicated attorneys to engage in breaches of professional duties. Too often, judges and prosecutors are complicit in these breaches, pushing defenders and defendants to take action with limited time and knowledge of their cases. This leads to guilty pleas by the innocent, inappropriate sentences, and wrongful incarceration, all at taxpayer expense.
The recommendations in the report include:
1. Divert misdemeanors that do not impact public safety to penalties that are less costly to taxpayers (we do have some programs in South Carolina courts, such as the alcohol diversion program (ADP), pre-trial intervention (PTI), and conditional discharges for some first time drug offenses, but these programs are often are not taken advantage of if there is no attorney to advise the defendant that they exist);
2. Reduce pressure on defendants to plead guilty, particularly at first appearance (many of our magistrates and municipal court judges place considerable pressure on defendants to plead guilty at their bond hearings, and there is never an offer of counsel for magistrate level offenses or a waiver of counsel; in some City of Myrtle Beach cases, if the defendant does not plead out at the bond hearing, their court date will be set within a day or two which makes it difficult for them to find an attorney to help them);
3. Enforce ethical obligations of all participants in misdemeanor adjudications (it is the ethical duty of prosecutors and judges, not just defense counsel, to ensure that defendants' constitutional rights are protected and that justice is done in the courtroom);
4. Provide counsel for any defendant facing the possibility of incarceration (because the Sixth Amendment and the United States Supreme Court says so?); and
5. Provide public defenders with the resources necessary to effectively represent their clients (or, in South Carolina, we could begin by just providing public defenders in the misdemeanor courts).
