Desperate times call for desperate measures: reclassifying drug possession offenses in response to the indigent defense crisis.

• Author: Gratton, Kaitlin C.

TABLE OF CONTENTS INTRODUCTION I. THE INDIGENT DEFENSE CRISIS A. The Right to Counsel and Indigent Defense Systems B. The Indigent Defense Crisis C. Excessive Caseloads: A Leading Cause of the Problem 1. What Is "Excessive"? a. Excessiveness by the Numbers b. Excessiveness by the Quality of Representation 2. No Matter How You Measure It, Indigent Defender Caseloads Are Excessive II. RECLASSIFICATION AS A SOLUTION TO EXCESSIVE CASELOADS A. When the Right to Counsel Does Not Apply: Amending Appointment Statutes To Conform with Supreme Court Precedent B. Reclassify What?: The Class of Cases Most Appropriate for Reclassification 1. Minor Crimes 2. Drug Possession Offenses III. RECLASSIFICATION: CRAFTING A STATUTE THAT WORKS A. Reclassification: What It Means and How To Do It B. Collateral Consequences: Insulating Those Cited Under a Reclassified Drug Possession Statute from the Usual Consequences of Drug Possession Convictions 1. Traditional Collateral Consequences 2. How States Can Insulate Offenders from Collateral Consequences IV. POLITICAL VIABILITY OF DRUG POSSESSION RECLASSIFICATION AS A SOLUTION TO THE INDIGENT DEFENSE CRISIS A. Refraining the Debate: Forgetting About Failure and Focusing on Collateral Consequences B. The Time Is Now: Evidence that America Is Ready for an Unconventional Solution to the Indigent Defense Crisis 1. Shifting Attitudes Toward American Drug Policy 2. The Move Toward Unconventional Remedies for Constitutional Violations in the Criminal Context CONCLUSION INTRODUCTION

Indigent defense in America "is in a chronic state of crisis." (1) The persistence of severe underfunding and excessively large caseloads have resulted in serious concerns regarding both the quality of indigent representation and the ability of indigent defenders to comply with their ethical and professional responsibilities to clients. (2) Despite decades of debate and study, the indigent defense crisis remains one of this nation's most pressing criminal justice problems. (3) This Note is concerned with one aspect of this longstanding crisis--the excessive caseloads that overburden indigent defenders. It argues that, in the current economic climate, (4) proposals aimed at resolving the indigent defense crisis must acknowledge the inherent unlikelihood that adequate funding will materialize. (5) Indeed, such proposals should focus on ways to maximize available resources. (6) The proposals to date recognizing the need to reduce excessive caseloads without additional cost have argued for the decriminalization of nonserious misdemeanors. (7) But, these proposals have failed to account for the deficiencies of such an approach: decriminalization of minor crimes can be largely cost-prohibitive and, even where successfully implemented, has failed to achieve the desired effect. (8) This Note suggests a more useful category of offenses for what it terms "reclassification." (9) It argues that, in order to reduce the appointment rates of indigent defenders, states should reclassify simple possession of all illicit narcotics as a civil infraction subject to a fine. (10)

Part I of this Note reviews a criminal defendant's constitutional right to counsel and describes the indigent defense crisis. Part II discusses current reclassification proposals aimed at reducing the burden on indigent defense systems and explains why these suggestions ultimately fail to address the crisis in a meaningful way. It then proposes reclassification of criminal drug possession offenses as a workable solution to the overburdening problem. Part III outlines how a state can implement a drug possession reclassification and discusses the collateral consequence implications of such an approach, arguing that reclassification efforts should include protective measures designed to avoid these consequences. Finally, Part IV considers the political viability of this Note's proposal.

1. THE INDIGENT DEFENSE CRISIS

   1. The Right to Counsel and Indigent Defense Systems

      The right to counsel in criminal cases is a fundamental and essential component of the American justice system. (11) The Supreme Court has declared it an "obvious truth" that a person "too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him." (12) Although fundamental, the right to counsel does not apply in all criminal proceedings. (13) Currently, indigent defendants are entitled to a lawyer in federal proceedings, (14) in certain pretrial proceedings, (15) in state felony proceedings, (16) in state misdemeanor proceedings in which actual imprisonment (17) or a suspended jail sentence (18) is imposed, in state juvenile proceedings, (19) and in the defendant's first appeal of right. (20) Indigent defendants are not entitled to representation prior to being formally charged with a crime, (21) in minor cases in which no imprisonment isimposed," (22) nor in discretionary appeals. (23) Although not available in every instance, a poor person's right to counsel remains centrally important to the American criminal justice system. (24)

      Indigent defense systems are the vehicles through which state and local governments provide constitutionally mandated legal services to qualifying criminal defendants. (25) These systems generally follow one of three delivery models--public defender programs, (26) assigned counsel programs, (27) and contract attorney programs. (28) State and local governments employ these models "either singly or in combination," (29) funding their chosen systems with state and county monies, court costs, and other user fees. (30) No matter which model a state or locality employs, its indigent defense system is intended to provide competent representation when such representation is constitutionally required. (31) Unfortunately, many of our nation's indigent defense systems fall far short of this goal. (32)

   2. The Indigent Defense Crisis

      America's indigent defense systems are in crisis. (33) Each year, "thousands ... are processed through America's courts ... either with no lawyer at all or with a lawyer who does not have the time, resources, or in some cases the inclination to provide effective representation." (34) Although the right to a lawyer may be constitutionally mandated, it remains an empty promise for many defendants. (35)

      The scope of the problem is staggering. Across the country, indigent defense systems lack adequate funding. (36) As a result, offices are often understaffed (37) with attorneys who are overwhelmed by impossibly large caseloads. (38) These same attorneys are undercompensated for their labor (39) and often lack basic resources, such as modern office equipment, (40) access to legal databases, (41) and vital investigative assistance. (42) Attorneys in such a position have little incentive to stay, and high turnover rates create indigent defense systems staffed with young, inexperienced lawyers. (43)

      Defendants who rely on these systems may not have access to them at all, as strains on the justice system as a whole can combine to frustrate the appointment of indigent defenders. Courts facing large dockets and costs often fail to properly notify qualifying defendants of their right to counsel and may even pressure them to waive that right. (44) Prosecutors, who are themselves overburdened with excessive caseloads, (45) may speak with defendants despite ethical obligations to neither advise nor negotiate with an unrepresented defendant, with such conversations often resulting in guilty pleas. (46) Defendants who are informed of their right and choose not to waive it often face lengthy pre-appointment delays that can severely prejudice their cases and incentivize them to plead guilty rather than to continue waiting. (47) And those defendants who patiently endure these pressures and lengthy delays may still end up pleading guilty, as defense attorneys with insufficient time and resources regularly encourage their clients to plead guilty in order to "expedite the movement of cases." (48) With so many deficiencies plaguing the process, few indigent defendants receive the effective assistance of counsel that the Constitution and the Supreme Court have guaranteed them. (49)

      America's indigent defense systems have been in crisis for decades. (50) This enduring dilemma has attracted considerable scholarly attention for nearly as long. (51) And yet, the problem persists. (52) Professor Erica Hashimoto, one of the more recent voices to join this discussion, suggests the principal reason behind the inefficacy of the proposals to date: Scholars have routinely argued for more money, and these cries have regularly "fallen on deaf ears." (53) Despite some progress, (54) indigent defense has been and continues to be "woefully under-funded." (55 And the problem is expected to worsen. (56) In 2009, twenty-two states with full financial responsibility for their systems faced "mid-year budget shortfalls." (57) As state budgets contract, indigent defense systems become increasingly popular candidates for further cuts. (58) In light of these deficits, it is increasingly unlikely that proposals demanding additional fiscal resources will gain support. (59) Proper indigent defense reform requires measures capable of implementation without increased strain on state and local budgets. (60) Thankfully, one aspect of the indigent defense crisis is ripe for such reform--the crushing caseloads that overburden indigent defense providers. (61)

   3. Excessive Caseloads: A Leading Cause of the Problem

      Excessive caseloads are a fundamental component of the indigent defense crisis. Reports and journal articles addressing the crisis routinely discuss the caseload problem, (62) with many arguing that it represents "the most visible sign of inadequate funding." (63) In short, excessive caseloads are a national problem, (64) one that demands a national solution.

      1. What Is "Excessive"?

         Scholars often frame excessiveness as either a failure to comply with some...