WASHINGTON—Courts routinely violate the constitutional rights of millions of Americans by discouraging or denying the right to a lawyer when criminally accused of a misdemeanor. The consequences can be lifelong and ruinous, yet most people are unaware of the problem.
On May 13, Senator Chuck Grassley (R-Iowa), chairman of the Senate Judiciary Committee, convened a hearing on “Protecting the Constitutional Right to Counsel for Indigents Charged with Misdemeanors,” and invited several constitutional scholars to testify. Grassley said he believed it was the first time the Committee had ever held a hearing on the subject.
The Sixth Amendment of the U.S. Constitution states, “In all criminal prosecutions, the accused shall … have the assistance of counsel for his defense.”
“Many states are not providing counsel as the Constitution requires,” said Chairman Grassley. “The Supreme Court’s Sixth Amendment decisions are violated thousands of times every day. No Supreme Court decisions have been violated so widely, so frequently, and for so long,” he said.
Professor Robert Boruchowitz, director of The Defender Initiative at the Seattle University School of Law, said, “In Kentucky, only 32 percent of misdemeanor defendants have a public defender. In Texas, 25.4 percent of the misdemeanor defendants appear without counsel.”
“Innocent people may be going to jail,” Grassley said. When misdemeanor defendants had lawyers through the whole legal process, about 25 percent of the cases are dismissed.
Expansion of Misdemeanor Offenses
The lack of representation in many misdemeanor criminal cases is rendered worse as the number of misdemeanor cases grows.
There is no nationwide tracking of the number of state and local governments’ misdemeanor cases, but an estimate based on data gathered from 12 states puts the number at 10 million per year, which is more than double the number of misdemeanor defendants prosecuted in 1972, said Professor Erica Hashimoto, University of Georgia School of Law.
Over-incarceration results from the lack of legal representation to contest charges and sentences, and the “expansion of misdemeanor offenses,” said Senator Patrick Leahy (D-Vt.), ranking member of the Judiciary Committee in written testimony. “People are being jailed, sometimes for weeks or months, for petty infractions like burning leaves, driving on a suspended license, or sleeping on a park bench.”
Boruchowitz said that people go to jail every day in many states for driving with a suspended license. He cited minor offenses treated as crimes: sleeping in a cardboard box, providing food to homeless people in a park, and walking a dog without a leash.
Both Leahy and Boruchowitz cited the recent Department of Justice report of Ferguson, Mo., to illustrate the extent to which the justice system in law enforcement and municipal courts has gone askew. It found that Ferguson, with a population of 21,000, has “16,000 people with outstanding arrest warrants, most of them for minor parking and traffic violations,” wrote Leahy.
People may be inclined to believe that this issue can’t be too serious because it is only about “misdemeanors.” David Singleton, a former public defender in Harlem and the District of Columbia, gave an example of lifelong impact that a misdemeanor conviction may have.
A person, whom he referred to as “Melinda,” suffered from seizures. Melinda was home with her young children, ages 3, 4, and 5, who were downstairs watching a video, when she received a call from a friend and decided to take the call upstairs. On the phone, she had a seizure, which her friend detected and called 9-1-1.
After the paramedics came and escorted Melinda to the ambulance, they noticed that cleaning supplies had been left out in the kitchen, knives were out on the counter, an electrical outlet was missing a cover, window screens were missing from the upstairs windows, and the smoke alarm didn’t work. She was later charged with child endangerment.
The judge advised Melinda that “the court would sentence her to a six month non-reporting probation if she pled no contest to two counts of child endangering. Melinda decided to plead no contest because she did not think she had any other options. She did not have the benefit of assistance of counsel, who could have discussed her available defenses and whether child endangering could bar her from working in the daycare industry,” said Singleton.
Years later, Melinda found a stable job that she much enjoyed as a daycare teacher, Singleton said. The center regarded her as one of their best employees and the children loved her. However, after performing the background check, she was fired due to her misdemeanor conviction.
Singleton, who is executive director of the Ohio Justice & Policy Center, believed it didn’t have to end this way if she had had legal representation. He said in the oral testimony that Melinda had “a viable defense.”
She had asked the landlord to fix the broken smoke alarm and to replace the missing window screens and outlet cover, but he told her that he had sold the building. Melinda couldn’t afford to make the fixes herself. The knives and cleaning supplies were out because she was cleaning the house.
All who testified said that a misdemeanor conviction can lead to obstacles in employment, education (such as school loans), and housing opportunities. “The consequences make quality representation more and more essential for misdemeanor crimes,” said Chief Justice of the Supreme Court of Iowa Mark Cady.
Right of Counsel
The right to counsel granted by the Sixth Amendment, originally applied to federal prosecutions for an accused who lacks the financial means to hire a defense lawyer. The trial judge would appoint an attorney for the defense. In 1963, in the landmark case “Gideon v. Wainwright,” the Supreme Court extended the right to state felony prosecutions.
Later, in 1972, in “Argersinger v. Hamlin,” the ruling of a constitutional right to counsel was extended to indigent misdemeanor defendants, who could be “sentenced to any period of incarceration, even a day,” testified Hashimoto.
In more recent decisions, the courts have interpreted the Sixth Amendment right to require court appointed counsel for indigent misdemeanor defendants unless the accused is sentenced to a fine or some other punishment that cannot be enforced through incarceration.
If the defendant receives a probation sentence that could at some time in the future be revoked, resulting in incarceration, the indigent misdemeanor defendant has a constitutional right to counsel, according to Hashimoto.
The landmark ruling in 1972 that mandated counsel to misdemeanor defendants affected many more people than the Gideon decision in 1963, which applied to just felony crimes. “The overwhelming majority of people who face criminal charges are prosecuted for misdemeanors,” said Grassley. In Iowa, he said misdemeanors were 80 percent of the criminal prosecutions.
Although the 1972 decision requires legal representation for misdemeanor defendants, the reality is disappointing. Representation for misdemeanor defendants is nowhere near the proportion for felony defendants, of whom 99 percent are represented in state and federal courts.
Due to the way the court system is structured in many states and localities, and the lack of budgeting for public defenders, “every report that has studied the issue of misdemeanor representation has found that a significant percentage of misdemeanor defendants have no lawyer,” said Hashimoto.
She wrote, for example, that some counties and cities in South Carolina and Georgia “enter into contracts with public defender offices to provide representation, but many do not.”
Court systems processing millions of misdemeanor cases has led to “assembly line justice,” said Hashimoto. She cited a report of arraignments in Florida misdemeanor courts in which 82 percent were resolved in less than three minutes. Misdemeanor defendants represented by counsel were much more likely to plead not guilty at arraignment than unrepresented misdemeanor defendants, most of whom pled guilty or no contests.
“I have documented hearings in a Washington State court in which the entire proceeding, from advice of rights through guilty plea and sentencing, took less than a minute and a half,” said Boruchowitz. In his written testimony, he provided the transcript of an example.
Excessive caseloads in courts handling indigent defense cases is a factor here too, both for the defending attorneys and the prosecutors. The sheer “volume of misdemeanor cases may create an obsession for speedy dispositions,” wrote Boruchowitz.
Defendants are induced to accept a guilty plea to get the benefit of receiving only a fine and court costs. Although this waiver of a defense may look attractive at the moment, the defendants may regret it later for the many collateral consequences in employment, education, housing, and more, said Cady.
Hashimoto said that trial courts often fail to inform defendants of the right to a lawyer, or “exert inordinate pressure on misdemeanor defendants to waive their right to counsel.” Defendants will be told, for example, that they will be released from jail that day only if they waive their right to counsel. If they refuse to waive the right to counsel, the case is delayed and may mean additional time in jail, she said.