May 01, 2015

Senate Judiciary Committee tackles denial of counsel in misdemeanor cases

The ABA commended the Senate Judiciary Committee for convening a hearing May 13 on the Sixth Amendment right to counsel in misdemeanor cases, agreeing with Senate Judiciary Committee Chairman Charles E. Grassley (R-Iowa) and Ranking Member Patrick J. Leahy (D-Vt.) that the denial of right to counsel in misdemeanor cases is a widespread problem.

Grassley and Leahy acknowledged in their opening statements that many states are not providing the counsel the Constitution requires and that state systems need to be reformed.

In a letter submitted for the hearing, which was the first congressional hearing ever held on the issue, ABA Governmental Affairs Director Thomas M. Susman emphasized that the U.S. Supreme Court’s landmark opinion in Gideon v. Wainwright, 372 U.S. 335 (1963), held that “lawyers in criminal cases are necessities, not luxuries.” He explained that millions of Americans, however, face misdemeanor charges each year without counsel.

Susman said that misdemeanors rarely garner media attention even though they account for 70 percent to 80 percent of all criminal cases. Nevertheless, direct consequences of misdemeanor conviction – including imprisonment, probation, fines and fees − can be substantial, and collateral consequences of these convictions – denial of employment, denial of professional licenses, student loan ineligibility or loss of housing – can be devastating.

Even when counsel is appointed, many defendants are still denied their right to “effective assistance” because public defense attorneys  assigned to misdemeanor courtrooms often are expected to represent far too many clients to deliver the level of representation recommended by the ABA Standards for Criminal Justice or the ABA Ten Principles of a Public Defense Delivery System.

“Assembly-line justice in misdemeanor cases falls short not only of our nation’s ideals, but of its constitutional guarantees,” Susman said.

In testimony during the hearing, Hon. Mark S. Cady, of the Conference of Chief Justices, described the mechanism used to deliver indigent defense as a “patchwork” of programs and said that systems in every state are underfunded. He testified that states should have both the financial resources and technical assistance available for an oversight group to monitor their indigent defense systems to make sure they are providing constitutionally effective representation in accordance with the ABA’s Ten Principles.

Cady said the public also would greatly benefit by the establishment of a National Center for the Right to Counsel that could help identify the best practices currently employed nationally that may help bring some uniformity to the indigent defense systems.

Grassley suggested that one way to address the problem would be to reclassify some misdemeanors as civil offenses or eliminate prison sentences for various misdemeanors. Leahy highlighted another possibility − legislation to provide technical assistance to state and local governments so they can meet their Sixth Amendment obligations and to authorize the U.S. attorney general to seek relief through civil action if systemic failure continues.

“While it is easy to talk about lofty, constitutional principles the reality is that it will be hard work to implement the kind of change we are talking about today,” Leahy concluded.    

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