GateHouse:The promise of legal representation often not fulfilled

Matthew T. Mangino

Gatehouse Media 

May 29, 2015 

Earlier this month, the U.S. Senate Judiciary Committee, convened a hearing on “Protecting the Constitutional Right to Counsel for Indigents Charged with Misdemeanors.” The hearing revealed that courts nationwide routinely violate the constitutional rights of millions of Americans by not providing legal counsel to them when criminally accused of a misdemeanor. 

The Sixth Amendment of the U.S. Constitution provides, “In all criminal prosecutions, the accused shall ... have the assistance of counsel for his defense.”

Counsel was guaranteed for criminal defendants facing felony charges in the landmark U.S. Supreme Court decision of Gideon v. Wainwright. In Gideon, the high court unanimously ruled that state courts are required to provide legal counsel for those defendants accused of a felony who could not afford a lawyer.

The decision is recognized as one of the most important of the 20th century. The decision brought into the national lexicon a line known by anyone who has ever watched a television crime drama, “[Y]ou have the right to an attorney if you cannot afford an attorney, one will be appointed for you. …”

Nearly a decade later, in Argersinger v. Hamlin, the Supreme Court extended the constitutional right to counsel to indigent misdemeanor defendants.

More recent court decisions have interpreted the Sixth Amendment to require court-appointed counsel for indigent misdemeanor defendants unless the accused can only be sentenced to a fine or other punishment that cannot be ultimately enforced through jail time.

The Argersinger decision mandating counsel for misdemeanor defendants affected many more people than Gideon did in 1963. “The overwhelming majority of people who face criminal charges are prosecuted for misdemeanors,” said Senator Charles Grassley (R-Iowa) Chairman of the Senate Judiciary Committee. In Iowa, he said misdemeanors represent 80 percent of the state’s criminal prosecutions.

“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,” said Grassley. 

While misdemeanors in some states do not, by themselves, carry prison sentences, they can lead to prison for probation violations or repeat offenses. For instance, a first degree misdemeanor in Pennsylvania carries a maximum penalty of five years in prison.

Last month, the Iowa Supreme Court overturned a woman’s third misdemeanor theft conviction, which carried a potential prison sentence, because she had not been represented by a lawyer during her second theft conviction, reported the Epoch Times.

As a result of that ruling, defendants in all Iowa misdemeanor cases must be provided a lawyer, either their own or one provided by the government, unless they waive that right. 

Unfortunately, the promise of legal representation is often not fulfilled because of a lack of state and local resources to pay for experienced lawyers. “Indigent defense delivery systems in every state are underfunded, in many states severely underfunded,” Iowa Chief Justice Mark Cady told the Judiciary Committee. Misdemeanors are handled “in almost assembly line fashion” by judges, prosecutors and defense lawyers laboring under excessive caseload, reported the Des Moines Register.

The extent of the problem is murky, because there is no nationwide tracking of the number of state and local governments’ misdemeanor cases. According to the Times, 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, testified Professor Erica Hashimoto from the University of Georgia School of Law.

The lack of representation in many misdemeanor criminal cases continues to place a burden on the system as the number of misdemeanor cases expands exponentially.

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George P.C. His book, “The Executioner’s Toll, 2010,” was recently released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.