Penalizing and Chilling an Indigent's Exercise of the Right to Appointed Counsel for Misddemeanors

INTRODUCTIONGideon v. Wainwright is widely celebrated for extending the Sixth Amendment right to appointed counsel to all indigent state defendants charged with a felony.1 "As the right that ensures that 'all other rights of the accused are protected,'"2 Gideon's importance cannot be overstated. But perhaps less well-known and certainly much less celebrated is the limited scope of Gideon's application to misdemeanors. Because of "[t]he recent exponential growth in [misdemeanor] prosecutions" which led one commentator to declare that "[t]here is a misdemeanor crisis in the United States,"3 and because "the world of misdemeanors looks to be about four or five times the size of the world of felonies,"4 the limited scope of Gideon's application to misdemeanors may be more important than Gideon itself.As applied to indigents charged with a misdemeanor, the Supreme Court in Argersinger v. Hamlin limited the scope of the Gideon right against deprivations of liberty.5 Those charged with misdemeanors in which imprisonment is not an authorized punishment do not enjoy the constitutional right to appointed counsel. And the scope of Gideon's application to misdemeanors is even more limited. In Scott v. Illinois, the Supreme Court clarified that even those charged with misdemeanors in which imprisonment is an authorized punishment are not necessarily constitutionally entitled to appointed counsel.6 Only indigents charged with a misdemeanor in which both imprisonment is authorized and actually imposed enjoy the Gideon right to appointed counsel.7While Gideon's application to misdemeanors has been criticized from all directions, much of the debate has centered on the preferability of an "authorized imprisonment" standard over an "actual imprisonment" standard. If Gideon's application to misdemeanors is to be limited at all, the Gideon right should be limited to indigents charged with a misdemeanor in which imprisonment is authorized (the "authorized imprisonment" standard). But by limiting Gideon's application to misdemeanors to indigent defendants actually receiving imprisonment (the "actual imprisonment" standard), the Supreme Court has established a standard that is often criticized as illogical in principle and unworkable in practice.8 In order to determine whether a defendant is entitled to appointed counsel, a judge must determine, prior to the verdict and before even hearing the evidence, whether she will impose a sentence of imprisonment. This puts the cart of punishment before the horses of trial, evidence, and guilt.9 But, despite significant criticism from judges and commentators alike, the Supreme Court repeatedly has refused to extend Gideon's application to misdemeanors any more broadly. The glaring and obvious problems of the "actual imprisonment" standard have perhaps obscured what may be an even more powerful argument against it. Overlooked is that Scott's "actual imprisonment" standard may unconstitutionally penalize and chill an indigent's enjoyment of the right to appointed counsel.After briefly tracing the Supreme Court's path to Gideon and the Court's limited application of Gideon to misdemeanors, Part I canvasses the debate among judges and commentators of the Scott "actual imprisonment" standard. It presents criticisms that the standard is too narrow, too broad, and, depending on the case, either too narrow or too broad.Part II presents a different type of criticism of Scott. It raises the novel argument that the Scott "actual imprisonment" standard may unconstitutionally penalize and chill an indigent's exercise of the right to appointed counsel. The argument relies on the general principle of constitutional law that chilling or penalizing the exercise of a constitutional or even statutory right is itself unconstitutional. Attaching the prospect of greater punishment (imprisonment) as the price to be paid for enjoying the assistance of appointed counsel penalizes and chills the exercise of that right. …