JURIST Guest Columnist Alba Morales, a researcher with Human Rights Watch, argues that indigent defendants are not receiving proper instructions regarding their right to counsel, a problem leading to uneducated plea bargains...
The day's business in the Midland County Court Court-at-Law #2 in Midland, Texas, begins promptly at 9 a.m. every day. Judge Marvin L. Moore addresses the crowded courtroom, as well as some defendants who are "attending" via videoconference from jail. He rattles off the defendants' rights at what seems like an auctioneer's pace ("You have the right to a trial, to be represented by an attorney at trial, to cross-examine witnesses..."), dispenses a few admonitions ("a DUI can cost you your license if you are under 21," if you are not a citizen "a plea can result in deportation") and concludes with a quick primer on court procedure all inside of four minutes.
Moore calls the first case. A prosecutor informs the defendant of the charges against him. The defendant confers with one of the half-dozen prosecutors in the courtroom, then enters a plea of guilty. It's 9:05 a.m.
This pace rarely lags as the day wears on, and the routine varies little: the judge delivers his rapid-fire recitation; charges are read; defendant huddles with prosecutors to negotiate a plea deal; defendant pleads guilty. In fact, of the 50 defendants who appeared before the judge on this particular Thursday in February on charges ranging from shoplifting to assault, 36 entered pleas of guilty or no contest.
Not a single defendant received a single word of defense advice (there are no defense attorneys in the courtroom, only prosecutors). Nor does Moore explain to defendants that they have the right to be appointed an attorney if they cannot afford one. And yet, every defendant who entered a plea that day gave up fundamental rights, was exposed to a possible term of imprisonment and, in many instances, received a criminal conviction. A misdemeanor conviction, which can carry a sentence ranging from a fine to a year in jail, can have far-reaching consequences that range from making people ineligible to hold certain jobs to affecting eligibility for student loans, public housing and food stamps.
Fifty years ago this month, the US Supreme Court ruled in the landmark case of Gideon v. Wainwright that defendants charged with a felony have a constitutional right to counsel in criminal trials, even if they cannot afford one themselves. Nine years after Gideon, the Supreme Court expanded that right to misdemeanor cases in which defendants face possible jail time.
I went to Midland because I had heard that poor people in this West Texas county, particularly those charged with misdemeanors, have a very difficult time enjoying their right to counsel. The numbers appear to bear this out: in Midland in 2012, defendants were appointed counsel in slightly more than 6 percent of misdemeanor cases, compared with almost 40 percent in the state of Texas as a whole. While nobody tracks nationwide data on the appointment of counsel, a 1996 survey of inmates in local jails [PDF] around the country found that over a quarter of misdemeanor defendants did not have an attorney. Thus, Midland represents one of the worst cases of an already bad situation nationwide.
It is unclear why so few Midland defendants receive any legal advice prior to pleading guilty. Like most criminal courts in the country, the Midland court seems to prize efficiency. One private defense attorney I spoke with said that this emphasis on efficiency was certainly part of the attitude in Midland. He said that a defendant really had to push to get assigned counsel, and it was not something that judges agreed to easily or took the time to explain. Also, like most counties in Texas, Midland lacks a public defender office (only 91 of Texas' 254 counties have public defenders).
This failure to protect the right to counsel runs counter to both the US Constitution and international human rights law. In 1992, the US became party to the International Covenant on Civil and Political Rights (ICCPR), which requires a defendant "to have legal assistance assigned to him, in any case where the interests of justice so require[.]"
While the UN Human Rights Committee the international expert body empowered to interpret this treaty has mostly applied the ICCPR in the context of serious crimes, in one instance the committee did address the absence of counsel in a minor crime. It found that a defendant who had received ample due process protections, including access to his case file, and months to prepare his case, did not need assigned counsel. (It is relevant to note that the Committee described him as the operator of a "business firm" perhaps indicating a lack of indigency).
None of the defendants I met in Texas had similar due process protections. The
European Court of Human Rights has recognized the importance of the right to appointed counsel for the poor even in non-criminal cases, such as divorce proceedings. While the interests at stake during divorce are certainly important, the possibility of incarceration and criminal sanctions faced by misdemeanor defendants are at least as important.
The process I saw in Midland did not comport with these international standards, sacrificing "the interests of justice" and fair procedure to efficiency. Indeed, many of the defendants I spoke to on my visit were so perplexed by the rapid-fire procedures they were subjected to that they seemed to have little-to-no understanding of what was going on.
One defendant who had just pleaded guilty to misdemeanor assault seemed baffled by what had just transpired. When I asked him why he did not insist on a lawyer, he told me that the prosecutor who had handled his plea agreement warned him that if he chose to retain legal representation, she would insist on the maximum penalty (a year in jail) rather than the $750 fine she was offering him under the plea agreement. "I can't do a year," he said. Another man told me from the county jail, where he had already spent a month incarcerated, that he entered a guilty plea to driving while intoxicated because he was afraid he would lose his job and be unable to pay child support if he were jailed any longer. He was unaware that he had a right to assigned counsel.
Misdemeanor pleas are serious. They often result in defendants spending some time in jail and can have serious collateral consequences, such as deportation. Perhaps not every case requires appointment of counsel, but minimum improvements can be made in Texas and across the US, such as establishing clearer procedures to inform defendants of their rights and affirming a stronger commitment to increasing attorney appointment rates, including in misdemeanor cases.
By some estimates [PDF], ten times as many misdemeanors as felonies are prosecuted in US courts. In 2012, Midland County prosecuted more than twice as many misdemeanor charges as felony charges. Texas as a whole has improved its indigent defense following the passage of the Fair Defense Act in 2001 [PDF], which provided additional funding and oversight for indigent defense services, but the majority of Texans charged with misdemeanors still plead guilty without the benefit of the advice of counsel.
Fifty years after Gideon and its progeny, and two decades after the US became party
to the applicable international treaty, the failure to make better progress is glaring. A justice system that denies fundamental rights to most of the people who come before it is handing down too little justice.
Alba Morales is a US researcher at Human Rights Watch. Follow her on twitter @AlbaHRW.
Suggested citation: Alba Morales, 'Too Little Justice': Misdemeanor Defendants in the US, JURIST - Hotline, March 22, 2013, http://jurist.org/hotline/2013/03/alba-morales-misdemeanor-defense.php
This article was prepared for publication by Stephanie Kogut, an associate editor with JURIST's professional commentary service. Please direct any questions or comments to her at firstname.lastname@example.org