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

Hearing

Good morning. Today the Senate Judiciary Committee holds a hearing on indigent
misdemeanor representation. According to the Sixth Amendment Center, and certainly in my
memory, this is the first time the Senate Judiciary Committee has ever held a hearing on this subject.

The Sixth Amendment provides criminal defendants with the assistance of counsel. For more
than 50 years, following the Gideon decision, it has been clear that it is necessary to give people
without financial means accused of crimes the right to a lawyer to help them navigate the system,
preserve their rights, and make sure innocent people don't go to jail. Clarence Gideon himself, when
retried with a lawyer representing him, was acquitted.

And that landmark ruling was extended in 1972 to misdemeanor defendants for good reason.
The overwhelming majority of people who face criminal charges are prosecuted for misdemeanors.
In Iowa, for example, 80% of all criminal prosecutions are for misdemeanors, among the highest rate
in the country.

Some states have adhered to the Constitution. In Iowa, the county courts do an excellent job
of providing counsel to misdemeanor defendants. I am pleased that Chief Justice Cady of Iowa is
with us today. Last month, his court extended the right to counsel by not permitting uncounseled
convictions to be used as sentencing enhancements in subsequent crimes. Uncounseled convictions
must exist in Iowa, however, or the decision wouldn't be necessary.

But many states are not providing counsel as the Constitution requires. It is a widespread
problem. In reality, the Supreme Court's Sixth Amendment decisions regarding misdemeanor
defendants are violated thousands of times every day. No Supreme Court decisions in our history
have been violated so widely, so frequently, and for so long.

Consider what is happening just in some of the states represented on this Committee.
Defenders are not present at arraignments. Large numbers of misdemeanor defendants plead guilty
without lawyers. Defendants who have been locked up pending their first appearance are told that
they can plead guilty and be sentenced to time served. But if they choose to be represented by
counsel, they will wait in jail until one is appointed. And problems exist on a smaller scale in the
federal system.

When misdemeanor defendants aren't given counsel, no one can challenge the legality of a
traffic stop or to make the prosecution prove every element of an offense beyond a reasonable doubt.
So innocent people may be going to jail. In locations where lawyers are provided at every stage of
the process, about 25% of all cases are dismissed.

There are members of the Senate who want to reduce sentences for felons. At least those
individuals have been proven beyond doubt to have, for instance, sold large quantities of drugs that
poison our children and bring violence to our streets. But to really address sentencing reform, we
should also be looking at the vast majority of crimes in this country -- misdemeanors -- and the
uncounseled prison sentences that punish them.

These constitutional violations cause serious repercussions. People who are convicted of
misdemeanors, whether they received legal representation or not, may have problems obtaining a job
for the rest of their lives. That hurts them. It hurts the economy. It hurts all of us.

Misdemeanor convictions give rise to other collateral consequences. Housing assistance and
student loan eligibility might be compromised. Some misdemeanor convictions can lead to loss of
gun ownership rights. Some misdemeanors, when repeatedly violated, become felonies. Yet prior
uncounseled misdemeanors should not count toward felonies and their consequences. Misdemeanor
convictions can also make defendants ineligible for the federal safety valve. That is a provision that
allows first time, low level drug offenders to avoid mandatory minimum sentences. In many
instances, misdemeanor defendants are unaware of those consequences when they enter into guilty
pleas.

I don't think that the solution to the problem is another federal grant program. According to
a 2012 GAO report, there are already 13 such programs. And of the 9 that can be used for indigent
defense and for other purposes, states haven't used the grants for counsel. Indigent representation
isn't their priority. In fact, barely half of all defender offices even knew that these funds could be
used for indigent defense. Perhaps we need a better federal effort in coordinating and maybe even
dispensing these funds, combined with transparency and accountability for why states aren't
spending available funds for indigent defense.

One way to address the problem would be for states to reclassify some misdemeanors as civil
offenses or eliminate prison sentences for various misdemeanors. Perhaps civil fines would be just
as effective without making states pay for lawyers or causing collateral consequences. We will hear
testimony today about diversion programs that take some offenses out of the criminal justice system.

States often make lawyers sit through CLE programs of dubious value. Perhaps they would
render a better public service by requiring lawyers to provide assistance to indigent misdemeanor
defendants instead.

What is particularly troubling about these constitutional violations is who is committing
them. It is our judicial system. The states and the state courts must adhere to the Bill of Rights.
Respect for our courts as well as the rule of law demands that.

Widespread, intractable violations of the Sixth Amendment have existed for more than 40
years. Few prospects exist that the states will soon remedy those violations. State systems need to
be reformed. We need to know what is happening. We pride ourselves on a legal system that
provides equal justice for all. For that to be real, we must make sure that those who cannot afford it
receive representation.

I thank our witnesses for being with us today.

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