The Problem with Misdemeanor Representation

Table of ContentsI. Introduction 1019II. The Constitutional Right to Counsel in Misdemeanor Cases: The Law and the Reality 1021A. The Constitutional Requirement 1021B. The Constitutional Right in Practice 1023III. The Reasons Underlying the Numbers 1031A. Criminal Defendants and the Real World 1032B. Systemic Factors Leading to Underrepresentation 1034IV. Fixing Misdemeanor Representation 1039A. Defending the Shelton-Arger singer Line 1039B. Getting to Compliance 1043V. Conclusion 1047I IntroductionThe failure to appoint counsel in misdemeanor cases may represent one of the most widespread violations of federal constitutional rights in criminal cases. A decade ago, in Alabama v. Shelton,1 the Supreme Court held that indigent defendants sentenced to suspended terms of incarceration in misdemeanor cases2 have a constitutional right to appointed counsel, even if the defendant is never actually incarcerated.3 At the time, many jurisdictions limited the misdemeanor right to counsel to defendants either actually sentenced to imprisonment or likely to receive imprisonment sentences. Shelton therefore required those jurisdictions to appoint counsel in significantly more cases than before.4 The Court's ruling notwithstanding, there is substantial evidence-both anecdotal and statistical-suggesting that some jurisdictions routinely fail to provide legal representation to those constitutionally entitled to it.Several factors contribute to this omission. First, some jurisdictions have simply refused to honor the Court's holding. Second, potentially unconstitutional barriers to the appointment of counsel-including prohibitively high fees imposed on defendants, failures to fully inform defendants of their right to counsel, and promises of prompt case resolution only in the absence of counsel-may lead some defendants to waive counsel. Of particular concern, in comparison with felony defendants threatened with long prison terms, Shelton defendants may be less likely to research the scope of their rights and learn that they have a right to counsel if their terms of imprisonment are suspended. Third, an absence of incentives for defense counsel to intervene may stand in the way of providing representation to those who are constitutionally entitled to it. Most constitutional rights to which defendants are entitled are enforced by lawyers advocating on their behalf. If no lawyer is appointed, however, there is no advocate to assure that the defendant's rights- including the right to counsel-are respected. As a systemic matter, moreover, public defenders or other court-appointed counsel may be so overburdened that they have neither the time to litigate the denial of counsel issue nor the resources to handle the additional cases that would come their way if they won.This Article argues that all of these forces, especially in their joint operation, have created a profound problem. The central difficulty is that major constitutional violations occur on a regular basis-to the detriment of highly vulnerable criminal defendants and our legal system as a whole. Some might argue that the Court in Shelton did not draw the optimal line for the right to counsel. But that line has been drawn, and the Shelton rule offers benefits that are well worth defending. Given a commitment to the Shelton line, this Article explores ways to guard the rights it guarantees. Ultimately, we need to gather more data to ascertain the extent of noncompliance with the misdemeanor right to counsel and to publicize infringements-especially systemic infringements-of those rights. To the extent that there are widespread violations of Shelton that have not been litigated, private members of the Bar must assure that they become the subject of lawsuits in order to vindicate the constitutional right to counsel.II. The Constitutional Right to Counsel in Misdemeanor Cases: The Law and the RealityA. …