Lessons from Ferguson on individual defense representation as a tool of systemic reform.

• Author: Colgan, Beth A.

ABSTRACT

This Article investigates the relationship between the decisions by lawmakers to use municipal and criminal systems to generate revenue and the lack of access to individual defense representation by using the Ferguson, Missouri, municipal court as a case study. The Article chronicles the myriad constitutional rights that were violated on a systemic basis in Ferguson's municipal court and how those violations made the city's reliance on the court for revenue generation possible. The Article also documents how the introduction of individual defense representation, even on a piecemeal basis, played a role in altering Ferguson's system of governance. Using this case study, the Article examines the way litigating individual cases and seeking the enforcement of constitutional rights can alter the cost-benefit of using courts to generate funds by both increasing system expenses and decreasing revenues. Further, individual case litigation alters the cost-benefit of using courts as revenue generators by forcing officials to take a public position on municipal court practices, thereby informing and changing the public debate on crime policy. The Article posits that while individual defense representation will have the greatest systemic effects in systems like Ferguson's, where there is a significant dependence on the courts for revenue, a pattern of unconstitutional activity, or the targeting of economically vulnerable communities, individual defense representation should be broadly understood as a tool for systemic reform.

The Article also raises theoretical and normative implications from the Ferguson experience regarding whether constitutional criminal procedural rules or local government controls over procedure serve as a better check against systemic abuses, and regarding the repercussions of a politically and doctrinally myopic focus on access to counsel as a solely constitutional, as opposed to political, matter.

TABLE OF CONTENTS INTRODUCTION I. FERGUSON A. Ferguson's Municipal Court System Before the Shooting of Michael Brown 1. System Design 2. Adjudication 3. Sentencing 4. Collections B. The Role of Individual Defense Counsel in System Reform in the Aftermath of the Shooting of Michael Brown II. THE ROLE OF INDIVIDUAL DEFENSE REPRESENTATION IN CRIMINAL JUSTICE REFORM A. How Individual Representation Can Aid in Changing the Cost-Benefit of Crime Policy B. How Individual Representation Can Aid in Creating a Public Reckoning 1. Forcing the Government to Take a Public Stance 2. Identifying Patterns of Abuse C. How the Limitations of Using Ferguson as a Model Support Systemic Access to Counsel III. THEORETICAL AND NORMATIVE IMPLICATIONS A. Implications Regarding the Role of Constitutional Procedural Rights and Local Governance in Criminal Justice Reform B. Implications for Understanding Access to Counsel as Both Political and Constitutional 1. Understanding Access to Counsel as Political 2. Accounting for the Political Effect of Individual Defense Representation Within the Right to Counsel Doctrine CONCLUSION INTRODUCTION

When tensions in Ferguson, Missouri, exploded in the late summer of 2014 following the shooting of Michael Brown by Ferguson police officer Darren Wilson, the ArchCity Defenders sought to provide some context to the anger and anguish exhibited by the city's residents. (1) The ArchCity Defenders, a nonprofit legal aid organization based in St. Louis, Missouri, which at the time focused on housing and homelessness issues, had been engaged in a courtwatching project. The project arose out of concerns that many of its clients had arrest warrants--issued as a result of their inability to pay fines and fees ordered by municipal courts around St. Louis County--that prevented them from accessing housing, treatment, and employment services. (2)

Just five days after the shooting, the ArchCity Defenders released a White Paper detailing what it had witnessed in nearly thirty of the county's municipal courts.' (3) The Paper described perfunctory hearings in which judges neither informed defendants that they may have a right to counsel nor provided it, assessed economic sanctions without considering a defendant's ability to pay, and issued warrants for and ultimately incarcerated--sometimes for weeks at a time--people who were too poor to pay the sanctions imposed. (4) The White Paper suggested what motivated these behaviors: the municipalities were using economic sanctions as a revenue-generating mechanism, producing millions of dollars that were used to operate municipal governments on the backs of their poorest and most politically vulnerable citizens. (5) The municipalities appeared to be targeting low-income and black communities with these practices. For example, fines were collected at rates more than fifteen times higher in one low-income, majority-black community than in a more affluent neighboring municipality. (6) Ferguson was among the three worst offenders. (7)

In the weeks and months to come, Ferguson would, of course, become a household name. (8) The U.S. Department of Justice sent a team to investigate the Ferguson Police Department, gaining access to city and municipal court officials, internal emails, and documents that would shed more light on what the ArchCity Defenders had uncovered. (9) The Department released a Report that, in addition to addressing the issues of police misconduct that led to Brown's death, described in great detail a disturbing abuse of power by judges, court personnel, prosecutors, police, and municipal authorities regarding the use of fines and fees to fill municipal coffers. (10) The offenses detailed in the Report were often minor: having "High Grass and Weeds" in one's yard, (11) failing to wear a seatbelt while in a parked car, (12) or--as then-Attorney General Eric Holder highlighted in his remarks on the Department's investigation--the "highlydiscretionary offense described as 'Manner of Walking Along Roadway.'" (13) Many offenses were enforced against the area's black residents almost exclusively. (14) Once embroiled in the municipal court system for these low-level offenses, the repercussions were anything but minor: intractable debt; the loss of drivers' licenses, employment, and housing; and even incarceration. (15)

The decision by Ferguson officials to use the municipal court system to generate revenue was a political one. There were other choices. While the municipality's ability to raise property taxes is constrained by state law, its officials could have sought the power to increase such taxes through a referendum. (16) Its officials could have pursued opportunities to consolidate the municipal court, or even its entire system, with neighboring municipalities so as to reach economies of scale on public service expenditures, thereby reducing the need for revenue. (17) They also could have curbed spending, which in the lead-up to the shooting included "buil[ding] an $8 million fire station, issu[ing] bonds to fund the $3.5 million-dollar renovation of the police station, and g[iving] all municipal employees (almost half of whom work for the Police Department) an 8 percent raise." (18) Ferguson officials instead chose to generate revenues through its municipal court.

Ferguson officials, like municipal officials across the country, (19) also declined to provide counsel to people charged in its municipal court and subjected to the fines and fees upon which the municipality so heavily relied. (20) The question of whether Ferguson was constitutionally mandated to provide counsel is muddy. (21) The United States Supreme Court has declined to extend the right to counsel to fine-only cases. (22) But it has left open the question of whether the right to counsel at trial extends to circumstances under which a jurisdiction imposes economic sanctions at sentencing for which the failure to pay triggers incarceration, (23) or to collections hearings. (24) Both practices were at issue in Ferguson. (25) Regardless, even absent a constitutional mandate, Ferguson officials could have chosen to provide counsel in its courts but did not do so.

In this Article, I chronicle the links between Ferguson's reliance on fines and fees for revenue generation and its decision not to provide counsel to people charged in its municipal court. I argue that Ferguson's political system failed its poor and black citizens in significant part because they were unrepresented by counsel. Had people subjected to Ferguson's municipal court scheme been afforded indigent defense representation, they would have been better able to challenge violations of numerous procedural and substantive constitutional rights, making many of the abuses that occurred illegal and fiscally impossible. Further, individual defense counsel can create--and as detailed below, has ultimately created in Ferguson--space for a public conversation about crime policy. In other words, I contend that legal representation not only helps protect the rights of individual clients, but also has the potential to alter systems of governance and therefore should be understood as a mechanism of systemic reform. Ferguson serves as a case study (26) that shows the capacity for indigent defense counsel to change the cost-benefit of crime policy decisions and to shape public debate, and to do both through the zealous representation of individual clients that is central to their role. (27)

Although I argue that individual defense representation can create powerful political leverage, particularly in places like Ferguson, I recognize that counsel's power in this role is limited both by the breadth and severity of criminal law, which provides prosecutors with the power to force pleas even where defense representation exists, (28) as well as the chronic underfunding of indigent defense systems across the United States. (29) And while access to effective counsel has been shown to have a positive effect on case outcomes...