The Right to Counsel: Why It’s Important and How It Serves the

Interests of all the Stakeholders in the Criminal Justice System

Argersinger Undone - The Challenges in Implementing the Right to Counsel in Misdemeanor Courts in South Carolina.

Charleston, South Carolina

June 15, 2012 Robert C. Boruchowitz, Professor from Practice

Director, Defender Initiative

Right to Counsel-- Everyday Practice and Procedure: The Nature of the Problem in South Carolina

-- Budget Crisis? How to save taxpayer money with misdemeanor diversion programs that safeguard the public, protect the rights of the accused, reduce recidivism and conserve limited resources

Right to Counsel-- Everyday Practice and Procedure: The Nature of the Problem in South Carolina

Enormous Volume of Cases Misdemeanor courts are where most people who go to court go to court. They are where people get their sense of how justice is administered.

SC Magistrate and Municipal Courts:

Nearly 180,000 criminal and DUI

cases per year, plus 89,000 ordinance

cases and many DUS traffic cases.

Total Criminal and DUI and Ordinance—269,622; Plus DUS and other Criminal Traffic Data from SCJD

Population Contrast

South Carolina: 4,679,230 Washington: 6,830,038 (278,984 misdemeanor cases filed)

South Carolina has more misdemeanor court level cases than Washington which has a larger population.

• Non-traffic cases per judge ranged from a low of 360 non-traffic cases per full-time general jurisdiction court judge in Massachusetts to a high of 4,374 non-traffic cases per judge in South Carolina.

• Note—One Charleston County magistrate judge told a CLE audience that he handled 9500 cases a year.

Incoming Criminal Cases in South Carolina's Magistrate and Municipal Courts, 2009

Case Type Magistrate

Court Municipal

Court Misdemeanor motor vehicle – DWI/DUI 15,801 5,687

Misdemeanor motor vehicle – other NA 386,482 Other misdemeanor 157,735 72,766 Total 173,536 464,935

NA = Court does not report this case type

Conclusions from Data

More data analysis is needed Even if about one-third of the total charges represent multiple charges for individuals, adding criminal, DUI, and ordinance cases and reducing those by 1/3 totals more than 180,000 accused persons. That does not count DUS cases, of which there likely are thousands.

Most Accused Persons Go To Court Alone Defenders statewide—between 8900 and 35000 per year...data not clear on how many cases resolved at magistrate level Total Magistrate court Criminal and DUI: 102,348 Large number of DUS and other criminal traffic not in the 102,348 number. Defenders handle no more than 33 per cent of total cases Entire courts do not have defenders regularly available. An eligible defendant who files a written motion for a defender may not receive one.

Richland County Example

Defenders appointed in fewer than ten per cent of total cases filed in magistrate court

Contrast

SC Magistrate Courts—No more than 33% have defenders King County, Washington: 49% have defenders City of Seattle: 62% have defenders SC Municipal Courts—varied and data not available

One Local Example of Volume

Richland County Magistrate Courts Criminal Filings 2012—15,500 Population—385,504 (2010) One criminal filing for every 24.87 people Defenders only appointed in 828 cases/1151 charges per year [handled 1533/2254] [2011]

Lack of…

In some courts, judges accept guilty pleas without colloquies, conduct bench trials with unrepresented defendants without proper waivers of counsel, conduct trials in absentia with no showing as to whether the defendant was able to appear, and impose jail sentences after convicting the defendants.

What the Law Requires

Alabama v. Shelton, 535 U.S. 654 (2002)

We hold that a suspended sentence that may "end up in the actual deprivation of a person's liberty" may not be imposed unless the defendant was accorded "the guiding hand of counsel" in the prosecution for the crime charged.

Argersinger v. Hamlin, 407 U.S. 25, 34-35 (1972)

Counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution. In addition, the volume of misdemeanor cases, far greater in number than felony prosecutions, may create an obsession for speedy dispositions, regardless of the fairness of the result. The Report by the President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 128 (1967), states:

Argersinger

The calendar is long, speed often is substituted for care, and casually arranged out-of-court compromise too often is substituted for adjudication. Inadequate attention tends to be given to the individual defendant, whether in protecting his rights, sifting the facts at trial, deciding the social risk he presents, or determining how to deal with him after conviction. The frequent result is futility and failure.

Rothgery v. Gillespie County, 554 U.S.191

(2008). the right to counsel guaranteed by

the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty.

SOUTH CAROLINA STATUTE SECTION 17-3-10. Persons entitled to counsel shall be so advised; when counsel shall be provided. Any person entitled to counsel under the Constitution of the United States shall be so advised and if it is determined that the person is financially unable to retain counsel then counsel shall be provided upon order of the appropriate judge unless such person voluntarily and intelligently waives his right thereto. The fact that the accused may have previously engaged and partially paid private counsel at his own expense in connection with pending charges shall not preclude a finding that he is financially unable to retain counsel. HISTORY: 1962 Code Section 17-281; 1969 (56) 374; 1977 Act No. 98 Section 2.

Domestic Violence Charges

(D)(1) At the bond hearing pursuant to the provisions of this section or another provision of law, the court shall inform in writing the person charged with a violation of Article 1, Chapter 25, Title 16 of his right to obtain counsel and, if indigent, his right to court-appointed counsel along with instructions on how to obtain court-appointed counsel.

Waivers of Counsel Must be Knowing, Intelligent, Voluntary

Iowa v. Tovar, 541 US 77 (2004)

The entry of a guilty plea, whether to a misdemeanor or a felony charge, ranks as a "critical stage" at which the right to counsel adheres. We have described a waiver of counsel as intelligent when the defendant "knows what he is doing and his choice is made with eyes open."

Tovar

The information a defendant must possess in order to make an intelligent election, our decisions indicate, will depend on a range of case-specific factors, including the defendant's education or sophistication, the complex or easily grasped nature of the charge, and the stage of the proceeding.

Tovar

… a defendant must be alerted to his right to the assistance of counsel in entering a plea. As to waiver of trial counsel, we have said that before a defendant may be allowed to proceed pro se, he must be warned specifically of the hazards ahead.

Faretta v. California, 422 U.S. 806(1975)

Although a defendant need not himself have the skill and experience of a lawyer in order competently and intelligently to choose self-representation, he should be made aware of the dangers and disadvantages of self-representation, so that the record will establish that he knows what he is doing . .

Rule of Professional Conduct 3.8 Special Responsibilities of a Prosecutor

The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause; (b) make reasonable efforts to assure that the accused has been advised of the right to, and the procedure for obtaining, counsel and has been given reasonable opportunity to obtain counsel; (c) not seek to obtain from an unrepresented accused a waiver of important pretrial rights, such as the right to a preliminary hearing;

Policy Considerations Fairness—Fundamental rights are being denied to thousands of people in the places that should protect them the most. Perception of public: Their respect for American justice is undermined when they experience denial of right to counsel.

Lawyers Can Make a Difference

One Charleston Defender’s Caseload for Three Months: 229 Clients, 351 Warrants, 253 Closed 107 Guilty Pleas 146 Cases Dismissed, Deferred, or Diverted—Favorable outcome in 57.7%

Yelm, WA Municipal Court

Judge’s observation after providing counsel: • [i]t does seem that more cases are reduced/dismissed at 1st

appearance, and that is, I believe, due to the presence of both the prosecutor and public defender.

• Since going all public defender, I have noticed two things: 1) many more defendants are represented by counsel, and 2) As a result, things move more smoothly at both the arraignment and pre-trial stages....The presence of the public defender improves communication between the sides greatly.

Examples of challenges

He said, "What were you arrested for, kid?" And I said, "Littering." And they all moved away from me on the bench there, and the hairy eyeball and all kinds of mean nasty things, till I said, "And creating a nuisance." And they all came back, shook my hand, and we had a great time on the bench, talkin about crime, mother stabbing, father raping, all kinds of groovy things that we was talking about on the bench.

Littering Penalty • (C)(1) A person who violates the provisions of this section in an amount

less than fifteen pounds in weight or twenty-seven cubic feet in volume is guilty of a misdemeanor and, upon conviction, must be fined two hundred dollars or imprisoned for not more than thirty days for a first or second conviction, or fined five hundred dollars or imprisoned for not more than thirty days for a third or subsequent conviction. In addition to the fine or term of imprisonment, the court also must impose eight hours of litter-gathering labor for a first conviction, sixteen hours of litter-gathering labor for a second conviction, and twenty-four hours of litter-gathering labor for a third or subsequent conviction, or other form of public service, under the supervision of the court, as the court may order because of physical or other incapacities.

Offenses That Could Be Diverted or Reclassified

• Seatbelt violations • Littering • Driving Under Suspension (not DUI) • Possession of Marijuana • No vehicle tag • Speeding • Possession of drug paraphernalia • Defective tail lights • Unlawful operation of golf cart

Defender Cases Fiscal 2012

• Possession MJ—1200 [366 stand-alone without a more serious charge]

• Drug Paraphernalia—266 • DUS (non-DUI)—675 • Littering—22 • Speeding—78 • Seatbelt—56

One Charleston Defender’s Caseload January-June, 2012

• DUS-63 cases • Simple Possession Marijuana—86 cases • Shoplifting—53 cases • Disorderly conduct—30 cases • Open Container—16 cases • Public Intoxication—9 cases • Disregarding stop/yield sign—5 cases • Speeding and seatbelt—4 cases • Littering-2 cases • Criminal Domestic Violence—83 cases • TOTAL: 832 charges. 10 per cent of caseload is SPM; 7.57%

is DUS.

“Stacking” of Charges

Practices worth examining • Examples in North Charleston Detainees: • One defendant held for disorderly conduct,

littering on highway. • Another detained for DUS, false info to police,

littering on highways, resisting arrest, and simple possession of marijuana.

• Both are Black.

No Counsel at Bond Hearings

• Bench book: “The bail proceeding is frequently the first contact between the accused and a judicial officer, with respect to the particular offense(s). For this reason, the bond proceeding is a very important phase of the criminal process, though it has never been held to be a stage at which the accused has the right to be represented by counsel. The accused may have his attorney present, but he has no absolute right to be represented.”

Other states take different view

• Washington by court rule • Maryland by court interpretation of statute • New Hampshire by court opinion

Some courts accept guilty pleas at bond hearings from in-custody

defendants without counsel and without Faretta colloquy

What’s wrong with that?

• No appointment of counsel or proper waiver • No opportunity for defendant to understand

options or consequences of conviction or to test government’s case

• Violates Padilla v. Kentucky: “…the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel.”

• Jargon and abbreviations likely not understandable by layperson defendants

• Innocent people might plead guilty to get out of jail • Lawyers can change outcome

Consequences of Conviction The defendant can be deported, denied employment, or denied access to a wide array of professional licenses. A person convicted of a misdemeanor may be ineligible for student loans and even expelled from school. Additional consequences can include the loss of public housing and access to food assistance, which can be dire, not only for the misdemeanant but also for his or her family. Fines, costs and other fees associated with convictions can also be staggering and too frequently are applied without regard for the ability of the defendants to pay the assessed amounts. Minor Crimes, Massive Waste, at 12-13.

Other considerations…

• There also is a cost impact as cases that might be dismissed with counsel continue and result in jail and probation. [20 % dismissal rate in Seattle]

• Racial disproportionality

What Should Happen • Defenders should meet with defendants and

advise them of their rights before court and be available to represent them at the first hearing.

• Judges should not encourage talking to prosecutors/police officer advocates without counsel

• Judges should have individual colloquies with defendants on their right to counsel and appoint counsel to eligible defendants unless a proper waiver is taken.

• Judges should have individual colloquies with defendants who are entering guilty pleas.

Budget Crisis?

• How to save taxpayer money with misdemeanor diversion programs that safeguard the public, protect the rights of the accused, reduce recidivism and conserve limited resources

Ways to Reduce Costs and Free Up Resources to Provide Counsel

• Pre-Filing Diversion – Marijuana Possession Cases – Suspended Driver License Cases – Shoplifting Cases – Prostitution – Criminal Trespass – Also could reclassify offenses as non criminal.

Opportunities

• Reduce need for lawyers—while recognizing importance of providing lawyers when they are needed

• Reduce burden on all parts of the system • Save money that can be re-invested in diversion

alternatives that can save more money and in providing counsel for people who need them.

• Some diversion programs can reduce recidivism • Re-licensing programs can actually increase

revenue

Removing cases from the criminal court system either by diversion or treating them as non-criminal violations can save hundreds of thousands of dollars.

http://www.acslaw.org/files/Boruchowitz%20-%20Misdemeanors.pdf

Saving $1 Billion per Year Nationally

By diverting or reclassifying these offenses as non-criminal violations, local and state governments could save hundreds of millions, perhaps more than $1 billion per year. In the process, as outlined in the NACDL report, the reduced burdens on millions of defendants would allow them to work and to meet their obligations, and the unfairness related to racial disparity would be reduced.

Scope of Problem

• Tremendous volume and cost of cases. • Example of Jail Costs—

– Spartanburg County • Population 284,000 • Jail Costs $13,150,789 • Jail Admissions Per Year: 18, 980

– One for every 15 people in the county • Jail Population 778 • Rated capacity 586

$16,903 per inmate per year http://www.spartanburgcountyjail.org/

18, 980 admissions per year

Another Example of Cost

Richland County Detention Center Budget: $20.8 million per year. Richland County Magistrate Courts: $3.156 million per year

One day in Charleston Jail May 14, 2012

North Charleston court detainees: DUS First—21 [17 Black] Open Container—4 [3 Black] Littering—3 [all Black] Public Intoxication—17 [13 Black] Drinking in Public—6 [all Black] Simple Possession Marijuana—21 [16 Black] Trespassing—23 [15 Black] Congregating for Unlawful Purpose—3 [all Black] (All 3 of these men were also charged with public intoxication or drinking in public)

Charleston Magistrate Court Detainees

• DUS—21 (18 Black) • SPM—4 (All Black) • Trespassing—11 (9 Black) • Open Container—4(3 Black)

Racial Disparity-- Charleston is 64% White

And from Family Court

• 247 people in jail on 301 charges • At $46.30 per day [Spartanburg

Cost], $11,438 per day to incarcerate failure to pay child support and contempt defendants, or $4,175,041 per year.

Costs A University of Oregon study found that the marginal cost of prosecuting and convicting a misdemeanor in Oregon was $1,679.11 Even if South Carolina costs are only half of Oregon’s, diverting just the 675 DUS cases handled by defenders could save $566,699 per year.

Alternatives

Alternatives—Divert more of these cases and re-classify some misdemeanors as non-criminal violations

An Alternative to Traditional Prosecution of Non-Support Cases King County, Washington “two-track” approach Can reduce costs by taking jail “off the table” in the first track.

Alternatives to Suspended Driver Cases

Pre-filing diversion Re-licensing programs

King County, Washington Diversion and Re-Licensing Program

Defenders, prosecutors, judges, and county officials were able to establish a diversion and re-licensing program for suspended driver’s license cases by building a coalition of political and judicial leaders that began with an alliance between the defenders and the prosecutors.

An evaluation of the first year of the program found that it returned $2 for every dollar spent, cut the jail population, and helped people get their licenses back.

Must pay fine in full to get license back

The King County Prosecutor’s Office offers an invitation to enroll in the Relicensing Program in lieu of filing the criminal

charges of Driving While License Suspended in the Third Degree and No Valid Operator’s License.

Variety of payment options including community service and the Community Work Program (work crew).. King County District Court –walk ins can get help Once the individual obtains their license, the King County Prosecuting Attorney has chosen not to file the criminal charge of Driving While License Third Degree or No Valid Operator’s License.

King County District Court Judge may mitigate and adjudicate any King County District Court infraction fines. Once an individual makes the first monthly payment, the participating courts will remove the hold on the license. The participant makes monthly payments until the balance is paid in full.

Community Service- Individuals are able to perform community service at the rate of $10.00 for each hour worked. Individuals are referred to community based organizations as part of the Relicensing Program or they are able to self refer. The District Court holds are released once the court receives written proof of community service hours performed. Community Work Program- Individuals are able to participate in work crew and receive credit towards King County District Court fines at the rate of $150 for every 8 hour day worked. Time Payment- Individuals are able to make a 10% down payment on non-collection fines and monthly payments for the remaining balance. Community Based Organizations- A representative from LELO is present to assist individuals with other cases not covered by any of the above. In addition, the community-based organization refers individuals from their orientation to the Relicensing Program to have their King County District Court fines addressed.

From Mary Muramatsu, Spokane City Prosecutor

Savings in Spokane Washington Diversion of Suspended Driver

License Cases

Spokane Population 208,000 46 per week, about 2400 cases per year

At 400 cases per public defender per year, six defenders needed for those cases. Base salary for starting PD is about $55,000 per year. Benefits, etc. adds about $15,000 per year. Total salary range = $70,000 to $90,00 per year. $420,000 to $560,000; about ONE-HALF MILLION DOLLARS PER YEAR for defenders.

Office of the Spokane City Prosecutor 909 W. Mallon Spokane, WA 99201 Ph: (509) 835-5988

City of Spokane Diversion Over the last year, the City of Spokane has diverted

2292 DWLS3 stand alone citations. Those cases, because they were infractions, never went to warrant and therefore never spent a single day in jail. Never had a public defender assigned to them. Never went much beyond a month to resolve, at most coming to court only twice. The majority only had one court date. The result was less time processing these cases, and that means fewer people handling them, and a far more abbreviated schedule toward resolution. This has undoubtedly reduced the costs to the City for the ‘prosecution’ of those cases.

[From city prosecutor office]

Impact of Relicensing Program • 1805 participated in 2011 • They paid $600,389.00 in previously uncollectable fines, about a third of what was owed. • “Since our relicensing program began in June of 2008, $8,926,987.68 has been pulled out of collections and people in the program since that time are paying toward those previously uncollectable fines. Spokane District Court has actually collected $968,664.20; Spokane Municipal has collected $946,678.09, Pend Oreille has collected $13,112.14 and so on.”

Costs saved

Time saved on court personnel: clerks, judges, etc; attorney work time reviewing these cases, making offers, conveying the offers, etc; failures to appear in court and the cost of issuing warrants; warrants being served and the resources spent on those arrests; jail costs as the result of people serving jail time after being arrested on their warrant; the cost of utilizing law enforcement resources on traffic stops when the license is suspended or when there is a warrant; mailing costs associated with court dates and notices sent.

Mary Muramatsu City Prosecutor Spokane City Prosecutor's Office 909 W. Mallon Spokane, WA 99201 (509) 835-5994 mmuramatsu@spokanecity.org

Impact of diversion program (1) Taking these cases off of the arraignment dockets and avoiding the need for public representation, (2) Eliminating any possibility of jail on these cases as a sentencing outcome, (3) Eliminating the numerous court dates that result from these cases being on a criminal docket and the warrants that inevitably result from failures to appear. (4) Preventing a chronic use of the jail for warrant stays prior to adjudication on these cases.

LEAD Seattle-King County

Law Enforcement Assisted Diversion Partnership of Defenders, Prosecutor, City Attorney, Law Enforcement, Community and Business Leaders Offers drug sale arrestees treatment instead of jail and prosecution Pilot project--Officer discretion

PRE-BOOKING DIVERSION OF LOW-LEVEL DRUG OFFENDERS TO A HIGH QUALITY, COMMUNITY-BASED INTERVENTION

LEAD Goals

Reduce number of low-level drug offenders entering criminal justice system. Redirect public safety resources to more pressing priorities, such as serious and violent crime. Improve individual and community quality of life through research-based, public health-oriented interventions. Sustain funding for alternative interventions by capturing and reinvesting criminal justice system savings.

Dramatic Impacts

At an estimated cost of $840 to prosecute a misdemeanor case, imagine the savings if hundreds or even thousands of cases were diverted out of court, with no need for judges, court clerks, prosecutors, defenders, or jailers to handle those cases.

Recommendations Consider expansion of diversion programs to include suspended driver license, possession of marijuana, criminal trespass cases Research and analyze jail population data to determine impact of existing arrest, warrant, detention and prosecution practices Consider options to change existing policies, including reclassification of some misdemeanors to non-criminal violations.