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Presentations and Speeches Faculty Scholarship

5-13-2015

Protecting the Constitutional Right to Counsel for

Indigents Charged with Misdemeanors -
Testimony of Erica J. Hashimoto before the U.S.
Senate
Erica J. Hashimoto
University of Georgia, hashimo@uga.edu

Repository Citation
Hashimoto, Erica J., "Protecting the Constitutional Right to Counsel for Indigents Charged with Misdemeanors - Testimony of Erica J.
Hashimoto before the U.S. Senate" (2015). Presentations and Speeches. 37.
http://digitalcommons.law.uga.edu/fac_presp/37

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Testimony of Professor Erica Hashimoto
Associate Dean for Clinical Programs and Experiential Learning
Allen Post Professor of Law and Josiah Meigs Distinguished Teaching Professor
University of Georgia School of Law

May 13, 2015

Senate Judiciary Committee Hearing: Protecting the Constitutional Right to Counsel for
Indigents Charged with Misdemeanors

Chairman Grassley, Ranking Member Leahy, and Members of the Committee.

Thank you for the invitation to testify today. My name is Erica Hashimoto, and I am the
Allen Post Professor of Law at the University of Georgia School of Law in Athens,
Georgia.

I am pleased to offer my thoughts regarding the denial of the right to counsel in criminal
misdemeanor cases.

Criminal misdemeanor prosecutions are not minor. They affect millions of Americans,
their families and their communities. They are criminal convictions with lifelong
consequences. The Supreme Court has recognized the importance of providing
counsel to misdemeanor defendants, but courts routinely violate this constitutional
mandate. This in part is because the enormous volume of misdemeanor cases being
prosecuted in state and local courts across the country has overwhelmed virtually every
court system, from state courts, to county courts, to local city courts. Lacking sufficient
resources to resolve all of these cases in accordance with Constitution, many states
and localities simply do not provide lawyers to misdemeanor criminal defendants who
have a constitutional right to counsel.

Before turning to the well-documented pattern of constitutional violations across the

country, I will describe the unique combination of factors that has generated this
constitutional crisis. I then will turn to the evidence—both statistical and anecdotal—of
these patterns of constitutional violations. Finally, I will propose federal legislative
solutions that, if enacted, would help states and localities come into constitutional
compliance.

FACTORS GENERATING THE CONSTITUTIONAL CRISIS IN MISDEMEANOR

CASES

The constitutional crisis of denial of counsel in criminal misdemeanor cases has been
caused by the massive volume of misdemeanor cases in which defendants have a
constitutional right to counsel, combined with the failure of states and localities to
adequately fund the defense of these cases. Under existing Supreme Court precedent,
many indigent misdemeanor defendants have a clear constitutional right to counsel.
But although the number of misdemeanor cases has burgeoned over the past fifty

1
years, many municipalities and states have decreased indigent defense funding. As a
result, many jurisdictions simply do not provide lawyers to misdemeanor defendants
who have a clear constitutional right to counsel under Supreme Court precedent.

The Supreme Court has held that misdemeanor criminal defendants in all but a narrow
category of cases have a constitutional right to counsel. In 1972, the Supreme Court,
recognizing that the sheer volume of misdemeanor cases “may create an obsession
with speedy dispositions, regardless of the fairness of the result,” held that every
indigent misdemeanor defendant sentenced to any period of incarceration (even a day)
has a constitutional right to counsel appointed by the state. Argersinger v. Hamlin, 407
U.S. 25, 34 (1972). Thirty years later, for many of the same reasons, the Court held
that indigent misdemeanor defendants sentenced to probationary terms that can be
enforced through incarceration have the same right to court-appointed counsel.
Alabama v. Shelton, 535 U.S. 654, 673-74 (2002). The Court was quite clear,
moreover, that the right to counsel in these cases applies at the time of conviction and
imposition of the probationary term even if the state never seeks to revoke probation.
Id. As a result, although misdemeanor defendants sentenced only to a fine that cannot
be enforced through incarceration do not have a right to counsel, virtually every other
indigent misdemeanor defendant has a constitutional right to court-appointed counsel.
See Scott v. Illinois, 440 U.S. 367 (1979). In sum, indigent misdemeanor defendants
have a right to have counsel appointed in every case in which they ultimately receive a
sentence either of imprisonment or of a probationary term that can be revoked and
result in incarceration if the defendant violates a condition of probation.

In at least some jurisdictions, moreover, most indigent misdemeanor defendants have a

constitutional right to counsel because many municipalities (and some states) impose
probationary sentences specifically in order to collect fines from indigent misdemeanor
defendants who cannot afford to pay the entire fine at sentencing.1 Many misdemeanor
defendants, both indigent and not indigent, are sentenced to fines upon conviction for
minor crimes. If the defendant has the resources to pay the fine, the case terminates
upon payment of that fine. But because many (if not most) indigent defendants cannot
pay their entire fine at the time of sentencing, they often are put on probation
conditioned upon repayment of the fine (and, as discussed below, many of those
defendants also are required to pay the costs of their probation supervision). Of critical
importance, the condition of probation requiring payment of fines can be enforced
through incarceration.2 Because all of these sentences include suspended sentences
of imprisonment, every single one of those defendants who is indigent has a right to
court-appointed counsel. See Alabama v. Shelton, 535 U.S. 654, 673-74 (2002).
Appointing counsel in these cases is especially critical because indigent defendants

1 See Alicia Bannon, Mitali Nagrecha, & Rebekah Diller, Brennan Center for Justice, Criminal Justice
Debt: A Barrier to Reentry 21 (2010), available at https://www.brennancenter.org/publication/criminal-
justice-debt-barrier-reentry (reporting that all fifteen states studied in the report, including California,
Texas, Florida, New York, Arizona, and Missouri, used probation as a means to collect at least some
criminal justice debts from those who could not afford to pay the full amount at the time of sentencing).
2 See Carrie Teegardin, Lives Upended as Judges Push Legal Limits, Atlanta Journal Constitution, May

2, 2015 (documenting the number of cases in Georgia municipal courts that result in probationary
sentences because of defendants’ inability to pay fines).

2
often cannot meet the condition of probation requiring monthly payments. As a result,
many defendants violate that condition of probation, which in turn lead to incarceration.3

The rate of incarceration attributable to probation revocations based on inability to pay

also has increased in at least some jurisdictions because indigent defendants who are
put on probation not only have to pay fines but also have to pay a monthly fee to the
probation company collecting the monthly fine payment from them.4 These fees,
ranging from the low end of $35 per month to a high of $100 per month in Montana,
exacerbate the debt facing the defendant, making it increasingly more likely that they
will be found to have violated probation for insufficient payments.5 As a result, indigent
misdemeanor defendants—the group entitled to appointment of counsel by the
government—are much more likely to be constitutionally entitled to counsel because
their indigence gives rise to probationary sentences that require counsel.

States and municipalities, moreover, prosecute millions of misdemeanor cases every

year, and the number of such cases appears to be rising. No nationwide data tracks the
precise number of misdemeanor cases,6 but one report estimates that states and
localities prosecute 10 million misdemeanor defendants every year, which would be
more than double the number of misdemeanor cases prosecuted in 1972.7 The
evidence is clear, moreover, that the volume of misdemeanor cases dwarfs that of
felony cases in state and local courts. According to data from 2013 provided by the
National Center for State Courts, for instance, in a number of states, including Texas,
Minnesota, Washington, Iowa, Florida and Arizona, misdemeanors constitute more than
80% of criminal cases prosecuted. And in most other states for which data are
available, roughly 70% of criminal cases are misdemeanors.8

These estimates of the volume of misdemeanor cases, moreover, may drastically

understate the number of cases in at least some jurisdictions. This is so because they
exclude some less-serious traffic offenses that some states deem criminal
misdemeanors and that often give rise to a constitutional right to counsel. In Georgia,

3 See Human Rights Watch, Profiting from Probation: America’s “Offender-Funded” Probation Industry at
51-52 (reporting that in Georgia, the only state for which such data was available, courts issued arrest
warrants for 124,788 offenders on private probation in 2012).
4 See id. at 12 n. 3 (documenting the use of offender-funded private probation systems in localities
throughout the country, including in Colorado, Utah, Alabama, Mississippi, Washington, Missouri,
Michigan, Tennessee, Montana, Florida, Idaho, and Georgia).
5 Id. at 24.
6 As discussed below, one of the real challenges with understanding the magnitude of constitutional
violations in misdemeanor cases has been that, unlike with felonies, very little data are compiled on
misdemeanors. For instance, no nationwide data exists regarding even the total number of misdemeanor
cases prosecuted in this country, let alone the outcomes in those cases or whether the defendant had
representation by counsel. Instead, academics can provide only their best estimates of the number of
cases.
7 See, Robert C. Boruchowitz, Malia N. Brink & Maureen Dimino, Nat’l Assoc. Criminal Def. Lawyers,

Minor Crimes, Massive Waste: The Terrible Toll of America’s Broken Misdemeanor Courts 11 (2009)
(providing estimate of the number of misdemeanor cases based upon data gathered in 12 states by the
National Center for State Courts) [hereinafter Minor Crimes, Massive Waste].
8 Only Alabama and Hawaii had rates of misdemeanor prosecutions below 50% of criminal cases.

3
for instance, most traffic offenses are misdemeanors punishable by up to one year in
jail.9 But although statistics available from the Administrative Office of the Georgia
courts reflect that over a million people were charged with non-serious traffic
misdemeanors in state and local courts, the only offenses reflected in the statistics from
the National Center for State Courts cited above were serious traffic offenses and non-
traffic misdemeanor offenses.10 In short, it appears clear that state and local courts
process overwhelming numbers of people in criminal misdemeanor cases every year.

The vast increase in the number of misdemeanor cases over the past fifty years is
attributable, at least in part, to the fact that in some jurisdictions, a number of civil
offenses that had previously been punishable only by civil penalties (such as fines) were
reclassified as criminal misdemeanors carrying the possibility of imprisonment.11 The
breadth of conduct that has been criminalized, moreover, is staggering. In New York,
for example, possessing cigarettes without a tax stamp is a misdemeanor.12 Nor is New
York anomalous in criminalizing such minor conduct. Utah, Georgia, and Delaware
deem virtually all vehicular moving violations as misdemeanors punishable by up to one
year in jail. Because all of these offenses have been designated criminal
misdemeanors, the number of misdemeanor cases has skyrocketed.

The massive volume of these cases highlights the importance of the right to counsel, as
the Court in Argersinger recognized. Court systems processing millions of
misdemeanor cases risk turning into “assembly line justice” that causes prejudice to the
rights of misdemeanor defendants. Argersinger, 407 U.S. at 36. And in fact, it appears
that assembly-line justice is dispensed across the country in misdemeanor cases with
prejudicial effects for defendants.13 A report on Florida misdemeanor courts, for
instance, demonstrated that 82% of arraignments—at which the vast majority of
defendants resolved their cases—took less than three minutes.14 And perhaps not
surprisingly, represented misdemeanor defendants were much more likely to plead not

9 See, e.g., O.C.G.A. § 40-6-1 (providing that all traffic offenses are misdemeanors unless specifically
excepted); O.C.G.A. § 40-6-124 (prohibiting failure to use turn signal); O.C.G.A. § 40-6-184 (outlawing
driving too slowly); O.C.G.A. § 40-6-246 (criminalizing coasting downhill in neutral).
10 Indeed, data from the National Center for State Courts reflect that Georgia prosecuted less than

300,000 misdemeanor cases in 2013.

11 At least some states and localities have begun to recognize the extraordinarily high costs associate
with deeming all of these transgressions criminal offenses and have begun to decriminalize or de-
penalize certain offenses, including driving on a suspended license.
12 The New York Tax Code provides as follows: “Any person . . . who possesses or transports for the

purpose of sale any unstamped or unlawfully stamped packages of cigarettes subject to tax . . . or who
sells or offers for sale unstamped or unlawfully stamped packages of cigarettes . . . shall be guilty of a
misdemeanor.” N.Y. Code § 1814(a). This code provision provided the basis for the arrest of Eric Garner
that led to his death.
13 See Nat’l Legal Aid and Defender Assoc., A Race to the Bottom: Speed & Savings Over Due Process:

A Constitutional Crisis 15 (2008) (noting the colloquial reference by stake holders in one Michigan court to
“McJustice Day,” when misdemeanor defendants are processed through assembly line justice).
14 See Alisa Smith & Sean Madden, Nat’l Ass’n of Criminal Def. Lawyers, Three-Minute Justice: Haste
and Waste in Florida’s Misdemeanor Courts 15 (2011), http://www.nacdl.org/
News.aspx?id=23653&terms=three+ minute+justice [hereinafter Three-Minute Justice].

4
guilty at arraignment than unrepresented misdemeanor defendants, nearly 80% of
whom pleaded either guilty or no contest at arraignment.15

Finally, states and localities simply have not devoted sufficient resources to ensure
compliance with the Constitution in all of these misdemeanor cases. Some jurisdictions
simply lack any structure for providing lawyers in misdemeanor cases. And even if
jurisdictions have the structure for appointment of counsel, they have not provided
sufficient resources to ensure appointment of counsel in all misdemeanor cases
constitutionally entitled to counsel.

Beginning with structural considerations, virtually all states have structures in place to
provide counsel in felony cases,16 but structures for providing representation in
misdemeanor cases are much more limited in many local (and, to a lesser extent, some
state) courts. This is so because many of the courts that handle misdemeanor cases
are separate from the felony courts that view representation as the norm and in which
counsel regularly appear. Court structures vary across states, but most jurisdictions
create two tiers for their courts: “limited jurisdiction courts” (usually at the county or
municipal level although sometimes also at the state level) have jurisdiction over
misdemeanors,17 and “general jurisdiction” courts have jurisdiction over both felonies
and misdemeanors.18

Limited jurisdiction courts, which handle the vast majority of misdemeanor criminal
cases in many states, in particular have struggled to create structures to ensure
representation in misdemeanor cases. In at least some jurisdictions, including South
Carolina and Georgia, the state-funded public defender offices do not provide
representation in limited jurisdiction misdemeanor courts unless the counties or cities
enter into a contract with the public defender office to cover those cases. And although
some cities and counties enter into contracts with public defender offices to provide
representation, many do not. The jurisdictions without public defender contracts often
enter into contracts with lawyers who agree to represent, for a flat fee, defendants who
request counsel. These lawyers have no economic incentive to appear in any case
unless required to do so by the court because they collect the same fee regardless of

15 Id. at 23 tbl.9.
16 Many states now have statewide public defender systems to ensure representation of indigent felony
defendants. And although some states still do not have statewide public defender systems for felony
cases, most states have put in place mechanisms to assure that counsel are appointed in every felony
case. Indeed, in 2009, every state except Pennsylvania and Utah provided at least some funding for
indigent defense. See Nat’l Right to Counsel Comm., Constitution Project, Justice Denied: America’s
Continuing Neglect of Our Constitutional Right to Counsel 54 (2009),
http://www.constitutionproject.org/wp-content/uploads/2012/10/139.pdf [hereinafter Justice Denied].
17 In some states, limited jurisdiction courts sometimes also hear the initial stages of felony cases,
including bond hearings and preliminary hearings.
18 There are five states, California, Illinois, Iowa, Minnesota, and Vermont—that do not have limited

jurisdiction courts. Nat’l Center for State Courts, Examining the Work of State Courts: An Overview of
2012 State Trial Court Caseloads 7 (2014). But because of the volume of misdemeanor cases, most
states have had to abandon that model.

5
the number of cases they accept.19 As a result, often no lawyer is present in the
courtroom to represent misdemeanor defendants when they appear and request
counsel, and those defendants are simply told that they cannot have a lawyer.

In many of these courtrooms, lawyers simply are not present, and as a result, violations
of core constitutional rights--the First Amendment right to free speech, the Fourth
Amendment right to be free of unconstitutional searches and seizures, and the
Fourteenth Amendment right to due process, including the right not to be jailed solely
because of indigence—occur with no consequence. Violations of the Constitution’s
specifically delineated protections against states overreaching into defendants’ private
lives essentially become invisible because the defendant does not have a lawyer to
raise those constitutional violations. For instance, many disorderly conduct charges
involve allegations that the defendant directed profanity at a police officer. But people
have a First Amendment right to speak their mind unless their speech either is
threatening or incites violence. In the absence of a lawyer representing the defendant
and challenging the violation of her client’s fundamental constitutional rights,
constitutional violations of the defendant’s First Amendment rights remain invisible and
never receive court scrutiny.

To give another example, it appears that misdemeanor defendants in many states are
incarcerated because of their poverty in direct violation of the Supreme Court’s holding
in Bearden v. Georgia, 461 U.S. 660 (1983), that a state cannot constitutionally imprison
a person solely on the basis of his inability to pay a fine unless he “has willfully refused
to pay the fine or restitution when he has the resources to pay or has failed to make
sufficient bona fide efforts to seek employment or borrow money to pay.”20 But unless
counsel is appointed to raise violations of Bearden, those errors will go undetected
because pro se indigent misdemeanor defendants likely will never know to raise
objections to the treatment by the government that the Constitution has prohibited. In
some courtrooms in which misdemeanors are prosecuted, moreover, no lawyers are
present at all—including prosecutors and judges—to recognize these constitutional

19 The problems of these sorts of flat fee contracts have been documented in numerous reports. See,
e.g., ABA Standing Comm. On Legal Aid and Indigent Defendants, Gideon’s Broken Promise: America’s
Continuing Quest for Equal Justice 11-12 (2004).
20 See, e.g., American Civil Liberties Union of Ohio, “The Outskirts of Hope, How Ohio’s Debtors’ Prisons

Are Ruining Lives and Costing Communities,” April 2013, at 8 (documenting the practice in mayor’s courts
throughout Ohio of incarcerating defendants who have not paid fines without informing of their right to
counsel or inquiring into their ability to pay); Carrie Teegardin, Lives Upended as Judges Push Legal
Limits, Atlanta Journal Constitution, May 2, 2015 (documenting cases in Georgia in which probationary
sentences were revoked because of defendants’ inability to pay fines without any inquiry into ability to
pay). Recognizing the constitutional problems these practices can raise, the Georgia General Assembly
has passed legislation that attempts to limit the regularly occurring unconstitutional revocations of
probation for indigent misdemeanor defendants who cannot afford to pay fines. The legislation is
laudable, and it highlights the importance of protecting the right to counsel. A lawyer representing an
indigent probationer threatened with revocation for failure to pay a fine could invoke both the protection of
the Constitution and the statute (if signed into law). But if those indigent probationers do not have
counsel to ensure compliance with the new statute, there is nothing to suggest that local courts that have
not complied with the Supreme Court’s prohibition on revoking the probation of an indigent person
because of his inability to pay a fine will comply with a new statute. See id.

6
violations. Judges in misdemeanor courts are not required to have law degrees, and in
some jurisdictions, no prosecuting attorneys appear.21 As a result, constitutional errors,
even if inadvertent, are neither identified nor corrected if defense counsel is not in court
to object to them.

The inadequacy of Indigent defense budgets also impedes representation of

misdemeanor defendants. Many of these jurisdictions currently do not allocate
adequate funding to cover the volume of misdemeanor cases that need appointment of
counsel.22 In Kentucky, for example, the legislature in 2008 reduced the indigent
defense budget by 6.4%, as a result of which the Department of Public Advocacy could
no longer provide representation in certain types of misdemeanor cases.23

In other jurisdictions, the lack of funding has led to excessive caseloads that prevent
lawyers from providing even the most basic representation.24 In New Orleans, for
example, part-time defenders handled the equivalent of 19,000 cases per year for a full-
time attorney, limiting those attorneys to an average of seven minutes per case.25 The
searching pursuit of justice guaranteed by the Constitution simply cannot happen in
seven minutes. As the Court in Argersinger noted: “An inevitable consequence of
volume that large . . . [is that] speed often is substituted for care, and casually arranged
out-of-court compromise too often is substituted for adjudication . . . The frequent result
is futility and failure.” 407 U.S. at 35 (internal quotation marks omitted).

STATISTICAL AND ANECDOTAL EVIDENCE OF WIDESPREAD VIOLATIONS OF

THE CONSTITUTIONAL RIGHT TO MISDEMEANOR REPRESENTATION

The enormous volume of misdemeanor cases giving rise to a right to counsel, combined
with the fact that states have neither the structure nor the budget to comply with the
demands of the Constitution, has led to widespread violations of the constitutional right
to counsel set forth in Argersinger and Shelton in states and localities across the
country. In stark contrast to the almost uniform representation by counsel in felony
cases,26 every report that has studied the issue of misdemeanor representation has
found that a significant percentage of misdemeanor defendants have no lawyer. And
because these misdemeanor defendants are not represented by lawyers, they suffer
severe consequences, including unconstitutional or unwarranted incarceration. Such
incarceration has enormous costs above and beyond the fact that defendants have

21 The Supreme Court has held that it does not violate due process for non-lawyer judges to try criminal
cases, as long as the defendant has the right to request a new trial before a judge who is a lawyer. See
North v. Russell, 427 U.S. 328 (1976). But pro se defendants are unlikely to know of their constitutional
right to de novo review of their convictions.
22 Justice Denied, supra n.16, at 59-60 (documenting cuts to indigent defense funding in a number of

states.
23 Id. at 60.
24 Minor Crimes, Massive Waste, supra n.7 at 20-27 (setting forth statistics on excessive caseloads—
including statistics demonstrating that in Chicago, Miami, and Atlanta, public defenders have more than
2000 misdemeanor cases per year—despite standards recommending that a lawyer represent no more
than 400 misdemeanor defendants per year).
25 Id. at 21.
26 Over 99% of felony defendants appearing in state and federal courts are represented by counsel.

7
been unconstitutionally incarcerated, including the loss of jobs that provide vital (and
often the only) means of support to low-income people, the inability to get jobs in the
future, and, perhaps most tragically, the state’s shuttling of children into the state foster
care system because their parents have been unconstitutionally incarcerated.

Violations of the right to counsel arise in three distinct, but related, ways. First, in some
instances, defendants are denied counsel even upon request or are simply never told
that they have a right to counsel. Second, trial courts in many jurisdictions either fail to
adequately inform defendants of their right to the assistance of counsel or exert
inordinate pressure on misdemeanor defendants to waive their right to counsel (by, for
instance, telling defendants that they will be released from jail only if they waive their
right to counsel and will remain incarcerated if they invoke their constitutional right to
counsel). And finally, even if a lawyer is appointed, in some jurisdictions that
appointment means three minutes of a lawyer’s time, which violates Argersinger’s clear
conclusion that counsel is necessary in misdemeanor cases “so that the accused may
know precisely what he is doing, so that he is fully aware of the prospect of going to jail
or prison, and so that he is treated fairly by the prosecution.” Argersinger, 407 U.S. at
34.

First, many jurisdictions directly violate the misdemeanor constitutional right to counsel
by simply failing to provide counsel either at all or before defendants talk to prosecutors.
The reports on this particular point are legion.27 For instance, a study of misdemeanor
cases in Florida found that 27% of unrepresented defendants were not told that they
had a right to counsel.28 The only available nationwide data on representation rates in
misdemeanor cases come from a Bureau of Justice Statistics survey of inmates
confined in local jails.29 Data from those surveys demonstrate that 30% of inmates
confined in jail as a result of their misdemeanor conviction reported that they were not
represented by counsel. Every single one of those defendants had a constitutional right
to counsel guaranteed by Argersinger, 407 U.S. at 34. But 30% remained
unrepresented.

And although the statistics on violations of the right to counsel vary somewhat
depending on the jurisdiction, it is significant that reports in every jurisdiction on which
data has been collected have demonstrated direct violations of the right to counsel, i.e.,
instances in which defendants entitled to counsel were never either offered counsel or
informed that they had a right to be represented by counsel.30 Indeed, the Chief Justice
of the South Carolina Supreme Court has acknowledged that her state “’simply [doesn’t]
have the funding’” to provide counsel to all of the misdemeanor defendants that the
Supreme Court has held have a right to counsel “and that chief justices from other

27 See, e.g., Minor Crimes, Massive Waste, supra n.7 at 15 (documenting numerous instances of courts
failing to inform defendants that they have a right to counsel); Three Minute Justice, supra n.14 at 15
(noting the practice, in some courts, of informing the defendants of their right to counsel only in written
documents).
28 See Three-Minute Justice, supra n.14 at 22 tbl.6 (2011).
29 Erica Hashimoto, The Problem with Misdemeanor Representation, 70 Wash. & Lee L. Rev. 1024 tbl.1
(2013).
30 See, e.g., supra n. 27.

8
states have told her the same.” John R. Emshwiller and Gary Fields, Justice is Swift as
Petty Crimes Clog Courts, Wall Street Journal (Nov. 30, 2014).

In some jurisdictions, the denial of the right to counsel happens slightly more subtly. In
Delaware, for instance, defendants arriving in misdemeanor cases are either told by
bailiffs, before they are informed of their right to counsel, that they need to speak to
prosecutors, or are told by judges, before those judges decide whether the defendant
has a right to counsel, that they need to speak to the prosecutor about pleas.31 These
defendants are overwhelmingly likely to resolve their cases with prosecutors and waive
their right to counsel before ever being informed that they have a right to counsel.
Because these cases end up being resolved before defendants have even been told of
the right to counsel guaranteed by the Supreme Court, they constitute violations of the
right to counsel.

Second, many jurisdictions have engaged in a practice of obtaining unconstitutional

waivers of the right to counsel. The Supreme Court has recognized that criminal
defendants have a right to waive the right to counsel, but it also has emphasized that
the trial court must not only inform the defendant of the existence of the right but also
the risks of waiving the right before the defendant can validly waive the right to counsel.
Johnson v. Zerbst, 304 U.S. 458, 464–65 (1938). In many jurisdictions, however,
defendants either are never informed of their right to counsel and the risks of waiving
that right or are compelled to waive the right. In Florida, for instance, observers found
that in over 60% of cases, judges failed to advise misdemeanor defendants of the
importance of being represented by counsel.32 And in courts throughout Michigan,
although misdemeanor defendants are given a form outlining their “basic right” to the
assistance of counsel, this “right” is never explained to the defendants nor are they
asked whether they want to waive that right.33 A related problem arises with compelled
waivers of the right to counsel. In some jurisdictions, for instance, misdemeanor
defendants appearing in court are told that they can resolve their cases that day only if
they waive their right to counsel.34 If they refuse to waive the right to counsel, the case
is delayed. For defendants who are incarcerated pending trial, any delay can mean
additional time spent in jail. Such waivers are not knowing, intelligent and voluntary,
and therefore likely violate defendants’ constitutional right to counsel.

Finally, structural deprivations of counsel—for instance, cases in which lawyers on

average have less than three minutes to represent their clients—represent a real

31 See, e.g., David Carroll, Sixth Amendment Center, The Crucible of Adversarial Testing: Access to
Counsel in Delaware’s Criminal Courts 29-30 (2014) (documenting the practice, in Delaware courts, of
shuttling unrepresented misdemeanor defendants to talk to prosecutors before informing them of their
right to counsel). See also Minor Crimes, Massive Waste, supra n.7, at 16-17 (documenting evidence
that in many jurisdictions, including Texas, Washington, Pennsylvania and Colorado, prosecutors speak
directly to criminal misdemeanor defendants before those defendants are informed of their right to
counsel).
32 See Three-Minute Justice, supra n.14 at 22 tbl.6.

33 See Nat’l Legal Aid and Defender Assoc., A Race to the Bottom: Speed and Savings Over Due

Process: A Constitutional Crisis 16-17 (2008).

34 See Minor Crimes, Massive Waste, supra n.7 at 18-19.

9
problem in many county and local courts, as well as in at least some state courts.35
Describing all of the ways in which three-minute representation violates the
Constitution’s right to counsel would take many pages, so I will describe just three.
First, in three minutes, a lawyer cannot know or explore whether the client actually
committed or has a defense to the crime with she has been charged. Second, a lawyer
simply cannot ascertain, within three minutes, whether the police who arrested the
client, and in many instances conducted a search, complied with the guarantees of the
Constitution. Finally, a lawyer cannot, in three minutes, know enough about a client to
advocate for a sentence that makes sense, either in negotiating a plea or in court.

Pelham, Georgia provides a compelling example of the denial of the right to counsel. In
2012, out of a total of nearly 2000 misdemeanor defendants, only nineteen
misdemeanor defendants had court-appointed counsel. And only nine misdemeanor
defendants were appointed counsel in 2013. Of course, only indigent defendants have
a right to court-appointed counsel, so if Pelham had a high-percentage of wealthy
residents, this statistic might make more sense. But 46% of the households in Pelham
earn less than $25,000 per year. In short, less than 1% of misdemeanor defendants in
Pelham received court-appointed counsel.

The lack of counsel in these cases, moreover, has startlingly negative consequences,
not only for the individual defendants and their families but also for the states. As
discussed above, unrepresented misdemeanor defendants are more likely to plead
guilty or no contest to criminal charges than their represented counterparts. And the
consequences stemming from the guilty and no contest pleas can be life-altering. To
give but one example, defendants convicted of misdemeanors face statutory and
regulatory bars to employment that can completely deprive them of their ability to be
employed in many occupations, including as home health aides, as well as being barred
from employment by many private employers.36 These consequences of misdemeanor
convictions deprive states of otherwise employable residents who lose their ability to
obtain gainful employment.

An example serves to illustrate the horrifying consequences of the denial of counsel in

misdemeanor cases. A low-income single mother of a four year old from Atlanta
needed to drive from southwest Georgia back to her home in Atlanta. She was pulled
over for speeding in Colquitt, GA, and after searching the car, the police found, under a
mat in the car, the cold remains of a marijuana cigarette. Charged with speeding and
possession of marijuana (less than one ounce), the defendant explained to the court
that she did not have the money to hire a lawyer, and she asked for one to be
appointed. No lawyer was appointed, in spite of the fact that the defendant never
waived her right to counsel. She pled guilty without a lawyer (in spite of the arguable
Fourth Amendment issues related to her case), was fined $1,591.75, and was put on
probation for two years with the condition that she had to pay not only the $1591.75 fine
but also the city’s probation provider an additional $50 each month to “supervise” her.

35Id.
36See Jenny Roberts, Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal
Courts, 45 U.C. Davis L. Rev. 277, 299-301 (2011).

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The defendant also was required to report in person every month to the probation office
in Colquitt, which required a 430 mile monthly trip for her. After she violated several
conditions of her probation, the court revoked her probation and sentenced her to 176
days in jail. Despite her requests for counsel, at no point did the court appoint counsel
to represent her. The defendant languished in jail for four months, until pro bono
lawyers who learned of her situation undertook representing her and ultimately won her
release. Compounding the damage brought on by this conviction, solely because of the
defendant’s incarceration, the government adjudicated her child a “deprived child.” The
costs to the defendant, her daughter, and the state from that misdemeanor conviction
are immeasurable.37

Misdemeanor defendants in jurisdictions across this country have been denied the right
to representation by counsel guaranteed by the Constitution. The denial of that right
has profoundly negative consequences for states and localities. This is so because
these defendants likely will end up incarcerated, straining the resources of their families
who bear the brunt of their incarceration, the state that pays for that incarceration, and
their communities, that lose them as citizens. Misdemeanor cases exact an enormous
toll not only on the individual defendants charged but also on their communities. In the
face of these widespread constitutional violations, Congress needs to act to protect the
constitutional rights of its citizens and to help states and localities move toward
complying with the Constitution.

SOLUTIONS

Solving the constitutional crisis in misdemeanor courts requires two key components:
(1) states and localities must reclassify at least some minor crimes as non-criminal
violations; and (2) indigent defense providers need to have sufficient resources to
provide representation to the remaining misdemeanor defendants. At least some states
have begun to recognize that reclassifying minor crimes as non-criminal violations not
only can help them achieve constitutional compliance but also can result in significant
cost savings.38 For instance, Massachusetts undertook a study in which it determined
that attorneys were appointed to represent 59,000 indigent defendants charged with
minor crimes that did not threaten public safety, including operating a motor vehicle with
suspended registration or license, trespassing, writing a bad check, disturbing the
peace, and shoplifting. If those cases had been deemed civil infractions, rather than
criminal offenses, the state would have saved approximately $8.5 million in costs of
representing those defendants.39

Reclassifying minor misdemeanors to remove them from the criminal justice system will
reduce, at least in part, the volume of misdemeanor cases and will make representation

37 The one direct cost of the defendant’s incarceration that can be measured is the roughly $10,000 for
her four month incarceration. On average, incarcerating a person in jail for a year costs $31,286.
38 See Minor Crimes, Massive Waste, supra n.7, at 27-29 (describing efforts undertaken in Hawaii,
Massachusetts, and Washington to decriminalize or de-penalize minor offenses that do not create a risk
to public safety).
39 Justice Denied, supra n.16, at 73.

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in such cases a more realistic possibility for states and localities. But reclassification
alone cannot solve the constitutional crisis in misdemeanor representation without
states and localities devoting additional resources to fund indigent defense providers.
Of fundamental importance, states must have an incentive to take steps to comply with
the constitutional rights of these defendants, otherwise the current patterns of
widespread violations will continue unabated.

THE IMPORTANCE OF FEDERAL LEGISLATION TO PROVIDE STATES WITH

INCENTIVES TO UNDERTAKE REFORMS

Federal legislation would provide states and localities with much-needed incentives to
take the steps necessary to come into compliance with the right to counsel in
misdemeanor cases. I will identify five options for federal legislation, all of which I
believe could help move states towards constitutional compliance.

First, legislation providing the Department of Justice with the authority to file civil actions
for declaratory or injunctive relief against states or municipalities that engage in patterns
and practices of violations of the misdemeanor right to counsel would provide states
and localities with significant incentive to comply with their constitutional obligations.
The authorization provided to the Department of Justice in 42 U.S.C. §14141 to file
actions where states or municipalities engage in a pattern or practice of violating the
rights of juveniles provides a useful model. The Department has exercised that
authority very sparingly, and has resorted to litigation only in the most extreme cases.
But because it has the authority to seek injunctive relief against states it has reasonable
cause to believe are engaging in patterns and practices of constitutional violations,
states have an incentive to comply with the Constitution in juvenile cases. Similarly,
providing such authority here both would give states an incentive to rectify practices that
have led to patterns of violations of the constitutional right to misdemeanor
representation as set forth by the Supreme Court and would allow the Department to
assist those jurisdictions in finding ways to come into compliance.

Second, legislation should be enacted to ensure that states and localities receiving
federal funding for law enforcement and criminal justice systems are not engaged in
widespread violations of the constitutional right to counsel in misdemeanor cases.
Legislation conditioning funding provided under the Edward Byrne Memorial Justice
Assistance Grant (Byrne JAG) program could require that states and localities receiving
such funding submit documentation of (1) the total number of misdemeanor cases
processed through their courts; (2) the numbers of misdemeanor defendants who were
represented by counsel; and (3) the percentage of represented defendants who were
represented by court-appointed counsel.

Particularly given the fact that most jurisdictions now maintain electronic databases on
their cases, requiring the collection of information regarding representation should not
be burdensome.40 Conditioning funding on the collection of this data would serve

40 Indeed, the Bureau of Justice Statistics already collects this information in felony cases in the most
populous jurisdictions, and it likely can assist states with ways to collect these data.

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several critical functions. First, it would provide important data (that currently do not
exist) regarding both the volume of misdemeanor cases and, more importantly, the
precise scope of the constitutional violations. Second, requiring states and localities to
collect and report these pieces of data may lead them to discover the magnitude of the
constitutional violations which could lead to local reform efforts. Finally, if the
Department of Justice is authorized to bring actions alleging a pattern or practice of
violations of the constitutional right to counsel in misdemeanor cases, these data can
help the Department understand the jurisdictions in which the violations are most
widespread.

Such compliance obligations, moreover, could be developed in conjunction with the

National Center for State Courts, which has taken the lead in ensuring that data are
available for cases in state and local courts. The National Center for State Courts likely
would prove to be an incredibly valuable resource as states and localities keep these
data, and also could help make such data publicly available.

Third, in conjunction with the previous recommendation, Byrne JAG funding could be
conditioned on states and, more importantly, local jurisdictions, having an indigent
defense structure. Jurisdictions that do not have limited jurisdiction courts have
reported far fewer problems with providing counsel in misdemeanor cases. This fact
likely is because those jurisdictions provide representation in misdemeanor cases as a
part of their overall representation of defendants in the state. That structure does not
exist in most states. Misdemeanor cases arise in county, municipal, local, and mayor’s
courts, as well as in state courts among many others. Some of these courts have the
structure to provide counsel to defendants. But many do not. Conditioning funding on
ensuring that jurisdictions have developed structures to provide lawyers will help assure
the appointment of lawyers to defendants who are constitutionally entitled to counsel.

Fourth, legislation authorizing funding for pilot programs in state, municipal, and local
courts would assist those jurisdictions as they examine the feasibility of reclassifying
some of the high-volume misdemeanor cases (such as driving on a suspended license)
as civil infractions. As discussed above, at least some jurisdictions are eager to
reclassify some minor offenses, but they need assistance both in assessing the
offenses that make most economic sense to reclassify and in measuring the impact of
reclassification on public safety. Federal support could help courts transition minor
offenses out of the criminal justice system, thereby saving jurisdictions the cost of
representation and all of the other costs associated with criminal cases.

Finally, federal legislation could create a National Defender Services Center that would
both organize the efforts of indigent defense providers nationwide and provide training
to indigent defense lawyers nationwide.41 Organizing the efforts of indigent defense
provides across the country would result in significant benefits to misdemeanor
defendants by raising the awareness of every defense lawyer to the ongoing
constitutional violations occurring sometimes before their eyes.

41 See Gideon’s Broken Promise, supra n. 19, at 41 (recommending creation of such a Center).

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CONCLUSION

The constitutional right to counsel in misdemeanor cases has been ignored in courts
throughout the country. And while courts protest that they cannot comply with
defendants’ constitutional right to counsel, misdemeanor defendants suffer the
consequences of the lack of counsel. Violations of core fundamental constitutional
rights—including the First Amendment right to free speech and the Fourteenth
Amendment right to be free of incarceration based solely on an inability to pay—occur in
many courts, and no lawyer is available to protest these violations. States and localities
desperately need incentives that the federal government can provide both to convert
some of these criminal offenses out of the criminal justice system and to comply with
defendants’ constitutional rights in cases that remain part of the criminal justice system.

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