Penalizing and Chilling an Indigent's Exercise of the Right to Appointed Counsel for Misdemeanors

• Author: Russell L. Christopher
• Position: Professor of Law, The University of Tulsa College of Law
• Pages: 1905-1927

Penalizing and Chilling an Indigent’s Exercise of the Right to Appointed Counsel for Misdemeanors Russell L. Christopher  ABSTRACT: While Gideon v. Wainwright is widely and justly celebrated for extending the right to the appointment of counsel to all indigent defendants charged with felonies, Gideon ’s application to misdemeanors is less well-known and more limited. In Scott v. Illinois , the Supreme Court restricted Gideon to misdemeanants actually sentenced to imprisonment. That is, the Scott “actual imprisonment” standard declines to extend Gideon to indigents with trial outcomes of either acquittal or conviction with a non-imprisonment sentence. Because only a post-trial outcome governs whether the Gideon right to counsel applies prior to and during trial, the “actual imprisonment” standard illogically places the cart before the horse. Despite strong criticism from both judges and commentators, the Supreme Court has repeatedly declined to fully extend Gideon . Overlooked amidst the more obvious and glaring deficiencies is perhaps a more powerful argument against Scott’ s “actual imprisonment” standard: It forces an indigent to choose between the assistance of appointed counsel (but at the price of eligibility for the harsher punishment of imprisonment) versus avoiding eligibility for harsher punishment (but at the price of lacking the assistance of counsel). Because an indigent may eliminate the prospect of harsher punishment by not exercising the right to appointed counsel, this Essay advances the novel claim that Scott ’s “actual imprisonment” standard may unconstitutionally penalize and chill an indigent’s exercise of the right to counsel.  Professor of Law, The University of Tulsa College of Law. Many thanks to Erica Hashimoto, Lawrence Herman, Jerold Israel, Peter Joy, Jonathan Rapping, and Rodney Uphoff for their insightful comments, to Shinong Wang for his helpful research assistance, and to The University of Tulsa College of Law for a Summer Research Grant. 1906 IOWA LAW REVIEW [Vol. 99:1905 INTRODUCTION .................................................................................... 1907 I. APPLYING G IDEON TO MISDEMEANORS ................................................. 1909 A. A B RIEF H ISTORY OF I NDIGENTS ’ R IGHT TO A PPOINTED C OUNSEL .... 1909 B. C RITICISMS OF GIDEON ’ S A PPLICATION TO M ISDEMEANORS —T HE “A CTUAL I MPRISONMENT ” S TANDARD ............................................. 1911 1. “Actual Imprisonment” Standard: Too Narrow ................. 1911 2. “Actual Imprisonment” Standard: Too Broad ................... 1912 3. “Actual Imprisonment” Standard: Either Too Narrow or Too Broad ............................................................................. 1912 II. UNCONSTITUTIONALLY BURDENING AN INDIGENT’S RIGHT TO APPOINTED COUNSEL FOR MISDEMEANORS ......................................... 1912 A. P ENALIZING AND C HILLING THE R IGHT TO C OUNSEL ....................... 1913 B. C ONSTITUTIONAL AND U NCONSTITUTIONAL R IGHT -B URDENING ...... 1914 C. T HE U NCONSTITUTIONALITY OF SCOTT ’ S “A CTUAL I MPRISONMENT ” S TANDARD ........................................................... 1920 III. OBJECTIONS ......................................................................................... 1923 A. O NLY A C ONDITIONAL C ONSTITUTIONAL R IGHT .............................. 1923 B. L ACK OF A T RUE C OERCIVE E FFECT ................................................. 1924 C. C OERCIVE E FFECT C ANNOT A RISE AS A P RACTICAL M ATTER ............. 1925 CONCLUSION ....................................................................................... 1927 2014] THE RIGHT TO APPOINTED COUNSEL FOR MISDEMEANORS 1907 INTRODUCTION Gideon v. Wainwright is widely celebrated for extending the Sixth Amendment right to appointed counsel to all indigent state defendants charged with a felony. 1 “As the right that ensures that ‘all other rights of the accused are protected,’” 2 Gideon ’s importance cannot be overstated. But perhaps less well-known and certainly much less celebrated is the limited scope of Gideon ’s application to misdemeanors. Because of “[t]he recent exponential growth in [misdemeanor] prosecutions” which led one commentator to declare that “[t]here is a misdemeanor crisis in the United States,” 3 and because “the world of misdemeanors looks to be about four or five times the size of the world of felonies,” 4 the limited scope of Gideon ’s application to misdemeanors may be more important than Gideon itself. As applied to indigents charged with a misdemeanor, the Supreme Court in Argersinger v. Hamlin limited the scope of the Gideon right against deprivations of liberty. 5 Those charged with misdemeanors in which imprisonment is not an authorized punishment do not enjoy the constitutional right to appointed counsel. And the scope of Gideon ’s application to misdemeanors is even more limited. In Scott v. Illinois , the Supreme Court clarified that even those charged with misdemeanors in which imprisonment is an authorized punishment are not necessarily constitutionally entitled to appointed counsel. 6 Only indigents charged with a misdemeanor in which both imprisonment is authorized and actually imposed enjoy the Gideon right to appointed counsel. 7 While Gideon ’s application to misdemeanors has been criticized from all directions, much of the debate has centered on the preferability of an “authorized imprisonment” standard over an “actual imprisonment” standard. If Gideon ’s application to misdemeanors is to be limited at all, the Gideon right should be limited to indigents charged with a misdemeanor in which imprisonment is authorized (the “authorized imprisonment” standard). But by limiting Gideon ’s application to misdemeanors to indigent defendants actually receiving imprisonment (the “actual imprisonment” 1. Gideon v. Wainwright, 372 U.S. 335 (1963). As testament to Gideon ’s enduring legacy, see, for example, the three recent symposiums celebrating the 50th anniversary of the decision: Symposium, Fifty Years of Gideon : The Past, Present, and Future of the Right to Counsel , 99 IOWA L. REV. 1875 (2014); Symposium, Gideon at 50: Reassessing the Right to Counsel , 70 WASH. & LEE L. REV. 835 (2013); Symposium, The Gideon Effect: Rights, Justice, and Lawyers Fifty Years After Gideon v. Wainwright, 122 YALE L.J. 2106 (2013). 2. Alexandra Natapoff, Gideon Skepticism , 70 WASH. & LEE L. REV. 1049, 1051 (2013) (quoting Penson v. Ohio, 488 U.S. 75, 84 (1988)). 3. Jenny Roberts, Crashing the Misdemeanor System , 70 WASH. & LEE L. REV. 1089, 1090 (2013). 4. Alexandra Natapoff, Misdemeanors , 85 S. CAL. L. REV. 1313, 1320–21 (2012). 5. Argersinger v. Hamlin, 407 U.S. 25, 37–38 (1972). 6. Scott v. Illinois, 440 U.S. 367, 373–74 (1979). 7. See id.1908 IOWA LAW REVIEW [Vol. 99:1905 standard), the Supreme Court has established a standard that is often criticized as illogical in principle and unworkable in practice. 8 In order to determine whether a defendant is entitled to appointed counsel, a judge must determine, prior to the verdict and before even hearing the evidence, whether she will impose a sentence of imprisonment. This puts the cart of punishment before the horses of trial, evidence, and guilt. 9 But, despite significant criticism from judges and commentators alike, the Supreme Court repeatedly has refused to extend Gideon ’s application to misdemeanors any more broadly. The glaring and obvious problems of the “actual imprisonment” standard have perhaps obscured what may be an even more powerful argument against it. Overlooked is that Scott ’s “actual imprisonment” standard may unconstitutionally penalize and chill an indigent’s enjoyment of the right to appointed counsel. After briefly tracing the Supreme Court’s path to Gideon and the Court’s limited application of Gideon to misdemeanors, Part I canvasses the debate among judges and commentators of the Scott “actual imprisonment” standard. It presents criticisms that the standard is too narrow, too broad, and, depending on the case, either too narrow or too broad. Part II presents a different type of criticism of Scott . It raises the novel argument that the Scott “actual imprisonment” standard may unconstitutionally penalize and chill an indigent’s exercise of the right to appointed counsel. The argument relies on the general principle of constitutional law that chilling or penalizing the exercise of a constitutional or even statutory right is itself unconstitutional. Attaching the prospect of greater punishment (imprisonment) as the price to be paid for enjoying the assistance of appointed counsel penalizes and chills the exercise of that right. Because an indigent can avoid the prospect of greater punishment by refraining from exercising the right to appointed counsel, the Scott “actual imprisonment” standard coerces an indigent from seeking the assistance of appointed counsel. After Part III anticipates and attempts to rebut three possible objections, this Essay concludes that the Scott “actual imprisonment” standard penalizes and chills an indigent defendant’s exercise of the Sixth Amendment right to the assistance of appointed counsel. Although not entirely clear, Scott ’s coercive effect on the right to counsel is plausibly unconstitutional. If Gideon is not to apply to all indigents charged with misdemeanors, then the basis of any limitation should be the “authorized 8. See, e.g. , Adam D. Young, Comment, An Analysis of the Sixth Amendment Right to Counsel as It Applies to Suspended Sentences and Probation: Do Argersinger and Scott Blow a Flat Note on Gideon ’s Trumpet? , 107 DICK. L. REV. 699, 707 (2003) (“In application, however, the ‘actual imprisonment’ standard has often proved illogical to the point of nullity given the workings of the American criminal justice system.”). 9. JAMES J. TOMKOVICZ, THE RIGHT TO THE ASSISTANCE OF COUNSEL: A REFERENCE GUIDE TO THE UNITED STATES CONSTITUTION 60 (2002). 2014]...