The right to counsel and collateral sentence enhancement: in search of a rationale.

AuthorMillar, Joel W.L.
PositionCase Note


If a wayward rancher steals his neighbor,s cow, he should be punished. If the rancher steals his neighbor,s cow again, he should be punished more severely. This, at least, is the normative judgment reflected in the various recidivist statutes codified in state and federal criminal law. Recidivist statutes permit and often require stiffer penalties for criminal defendants who have previously been convicted of one or more crimes.(1)

Not all prior convictions, however, render a convicted defendant eligible for stiffer punishment. In United States v. Tucker,(2) the United States Supreme Court held that the Sixth Amendment prohibits the use of a prior conviction to enhance a criminal defendant's sentence if that conviction was obtained in violation of the right to counsel.(3) The Supreme Court has defined the right to counsel as the right to be represented by a lawyer in criminal prosecutions. For indigent defendants (those who cannot afford to hire a private lawyer), this is the right to be represented by a court-appointed lawyer. Unless an indigent defendant waives this right, the state must provide the defendant with a lawyer. If the state does not provide a lawyer, any resulting conviction is unconstitutional and can be reversed.(4)

The right to court-appointed counsel, however, does not extend to all criminal prosecutions. The Supreme Court has limited this right to felony convictions and to those misdemeanor convictions that give rise to a jail sentence.(5) In Scott v. Illinois,(6) the Court held that if the defendant is convicted of a misdemeanor and is not sentenced to any time in jail, but rather is ordered to pay a criminal fine or to serve a probationary sentence, the Sixth Amendment does not require the state to provide the defendant with a lawyer.(7) In this limited class of prosecutions, an indigent defendant may be validly convicted under the Constitution, even though the defendant did not have a lawyer.

Can these valid but uncounseled misdemeanor convictions be used to enhance a defendant,s sentence? In its most recent right to counsel decision, Nichols v. United States,(8) the Supreme Court held that they can.(9) The Court explained that enhancing a defendant's sentence on the basis of a valid uncounseled conviction punishes only the last offense, not the uncounseled conviction, and thus does not violate the Sixth Amendment under Scott because no imprisonment has been imposed for the uncounseled conviction.(10) Furthermore, the Court distinguished Tucker by pointing out that a valid but uncounseled misdemeanor conviction does not violate the right to counsel.(11) Finally, the Court explained that the consideration of a defendant's prior uncounseled convictions under a recidivist statute satisfies the relaxed requirements of due process in the sentencing stage of a criminal prosecution.(12)

This Comment examines the reasons offered by the Court in Nichols and concludes that the Court failed to provide a valid rationale for its decision. Part I discusses the mechanics, theory, and constitutionality of recidivist statutes. Part II describes the evolution of the right to counsel and of the Sixth Amendment limitation on the collateral use of prior convictions. Part III summarizes the majority, concurring, and dissenting opinions in Nichols. Part IV considers each of the Court,s justifications for its Nichols decision. Part IV concludes that, first, the Court cannot rely on Scott to uphold enhancement because, by the Court's own reasoning, Scott does not apply. Second, the Court cannot distinguish Tucker by relying on the constitutional validity of an uncounseled misdemeanor conviction because the decision in Tucker was motivated by the lack of counsel rather than the formal constitutional validity or invalidity of the prior conviction. Finally, because the issue must stand or fall with the Sixth Amendment, the Court's due process argument is irrelevant. Part V examines Justice Souter's approach and concludes that it also is difficult to square with the Court's Sixth Amendment jurisprudence. Part V suggests a resolution more consistent with the principles underlying the Court's right to counsel cases. Finally, Part VI urges state courts and legislatures to look beyond Nichols in deciding whether to permit the collateral use of valid uncounseled convictions.

  1. Recidivist Statutes

    Sentence-enhancement (or recidivist) statutes generally require that courts impose heavier penalties upon offenders who have previously been convicted of a criminal offense than upon those who have not. The form that recidivist statutes take varies from state to state, with some increasing the applicable sentencing range(13) or upgrading the offense classification,(14) and with others mandating a particular disposition, such as the maximum penalty authorized by the conviction offense,(15) a specified, period of incarceration (either as a minimum sentence(16) or in addition to the base sentence(17), or, in the extreme, life imprisonment.(18) Recidivist statutes also vary in the kind of prior convictions that will trigger enhanced punishment. Some statutes only apply to serious felonies,(19) others to a range of specified felony and misdemeanor offenses,(20) and yet others to virtually all criminal offenses.(21) Whatever their form or scope, however, all recidivist statutes share the same goal: punishing repeat offenders more severely than first-time offenders.

    Enhanced punishment for repeat offenders is generally justified on the grounds of retribution, general deterrence, and specific deterrence. First, criminals are considered more culpable when they commit crimes after having been convicted and punished for a previous crime.(22) Second, aggravated punishment for repeated criminal behavior is thought to be necessary to deter future crime-those considering committing a second or third criminal act will think twice if they know they will go to jail for an extended period of time.(23) Finally, enhanced punishment is justified because repeat offenders have not been deterred by lesser sanctions and because their demonstrated propensity to commit crime poses a danger to society.(24)

    Sentence-enhancement statutes have been upheld by the Supreme Court against a variety of constitutional challenges, including double jeopardy,(25) due process,(26) equal protection,(27) ex post facto laws,(28) privileges and immunities,(29) and cruel and unusual punishment claims.(30) As the Court in Nichols v. United States(31) noted, recidivist statutes have been regarded as punishing the last offense only,(32) and the Court has recognized the states, legitimate interest in deterring habitual criminals by singling them out for additional punishment through recidivist statutes.(33)

    This Comment focuses on one particular constitutional problem concerning recidivist statutes - the extent to which a defendant's Sixth Amendment right to counsel is implicated when a prior uncounseled conviction is used to send a defendant to jail for a significantly greater period of time. This was the issue the Supreme Court addressed in Nichols. Before turning to the Nichols case, however, it will be useful to review the Supreme Court's Sixth Amendment jurisprudence.

  2. The Sixth Amendment's Right to Counsel Jurisprudence:

    Reliability, Consequences, and State Burdens

    The Sixth Amendment of the United States Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence."(34) Although originally understood to apply to the federal courts only,(35) the right to counsel now applies to the same extent in criminal proceedings prosecuted in the state courts.(36) The Sixth Amendment requires both state and federal courts to affirmatively appoint counsel to represent both indigent defendants charged with felonies and indigent defendants charged with misdemeanors that result in a sentence of imprisonment upon conviction, unless the defendant intelligently and competently" waives the right.(37)

    By its terms, the Sixth Amendment applies to all criminal prosecutions. The Court, however, has stopped short of extending the right to court-appointed counsel to all criminal prosecutions, drawing the line at actual imprisonment in misdemeanor cases.(38) Why? What are the underlying Sixth Amendment principles that have led to this result?

    This Part opens with an examination of those underlying principles that have guided the Court in developing its interpretation of the Sixth Amendment. This Part then proceeds to analyze the Sixth Amendment constraints on the collateral use of uncounseled convictions.

    1. The Right to Counsel

      1. Reliability. The Need for Defense Counsel in

        Criminal Prosecutions

        At the core of the Sixth Amendment's right to counsel is the proposition that the assistance of counsel is essential to a fair trial. Gideon v. Wainwright(39) represents the Court's most dramatic statement of this principle, holding that the right to counsel belongs among the fundamental rights embraced by the Fourteenth Amendment's Due Process Clause.(40) The development of this doctrine, however, dates back at least another thirty years before the Gideon decision to Powell v. Alabama.(41)

        It was in Powell, a case in which the defendants were under a sentence of death,(42) that the Court first articulated the need for defense counsel in criminal prosecutions to guarantee reliability. The Powell Court emphasized the defendants, need for counsel not only at trial, but also in preparation for trial. Thus, appointment of counsel on the morning of trial was rejected as inadequate because it was the period between arraignment and trial, when consultation, thoroughgoing investigation and preparation were vitally important,"(43) that the aid of counsel was perhaps most critical to the criminal defendant.

        The Court also underscored the importance of counsel during the trial itself by noting that the...

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