Right to Counsel in Misdemeanor Prosecutions After Alabama v. Shelton: No-Lawyer-Courts and Their Consequences on the Poor and Communities of Color in St. Louis

Date01 July 2018
Published date01 July 2018
AuthorThomas B. Harvey,Jared H. Rosenfeld,Shannon Tomascak
DOI10.1177/0887403417743301
Subject MatterArticles
https://doi.org/10.1177/0887403417743301
Criminal Justice Policy Review
2018, Vol. 29(6-7) 688 –709
© The Author(s) 2017
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DOI: 10.1177/0887403417743301
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Article
Right to Counsel in
Misdemeanor Prosecutions
After Alabama v. Shelton:
No-Lawyer-Courts and
Their Consequences on the
Poor and Communities of
Color in St. Louis
Thomas B. Harvey1, Jared H. Rosenfeld2, and
Shannon Tomascak3
Abstract
Under U.S. Supreme Court cases Argersinger v. Hamlin and Alabama v. Shelton, the Sixth
Amendment of the U.S. Constitution requires the provision of defense counsel to an
indigent defendant for any charge that, if proved, actually leads to imprisonment or is
punished by a suspended sentence that subsequently could lead to imprisonment. This
article uses St. Louis as a case study to demonstrate that unconstitutional criminal
procedures and underfunded public defender’s offices create no-lawyer-courts—
courts that unconstitutionally allow defendants to go unrepresented. In a period of
observation spanning 2014-2016, we found that St. Louis courts violated the right to
counsel in misdemeanor prosecutions through lengthy confinements and exorbitant
bonds, abusive plea bargaining practices, invalid waivers, and unconstitutional
sentences. Drawing from court observations and electronic data, this study highlights
how constitutional doctrine’s grant of procedural discretion to lower courts imposes
injustice on poor and minority communities in practice.
Keywords
courts, policy implications, sentencing disparity, individual freedoms, justice
1ArchCity Defenders, St. Louis, MO, USA
2Harvard Law School, Cambridge, MA, USA
3John Jay College of Criminal Justice, New York, NY, USA
Corresponding Author:
Shannon Tomascak, John Jay College of Criminal Justice, 524 W 59th St., New York, NY 10019-1093,
USA.
Email: Shannon.Tomascak@jjay.cuny.edu
743301CJPXXX10.1177/0887403417743301Criminal Justice Policy ReviewHarvey et al.
research-article2017
Harvey et al. 689
The Sixth Amendment states, “In all criminal prosecutions, the accused shall enjoy
the right . . . to have the Assistance of Counsel for his defence.” A plain reading of
the Sixth Amendment might suggest that the Constitution guarantees any indigent
defendant the right to counsel, irrespective of the seriousness of the crime with
which they have been charged. While the Supreme Court has not interpreted the
Sixth Amendment as expansively as that, it has held in Argersinger v. Hamlin
(1972) and Alabama v. Shelton (2002) that the Sixth Amendment requires the provi-
sion of defense counsel to an indigent defendant for any charge that, if proved,
actually leads to imprisonment or is punished by a suspended sentence that subse-
quently could lead to imprisonment. Yet, as Senator Charles Grassley has explained,
“the Supreme Court’s Sixth Amendment decisions regarding misdemeanor defen-
dants are violated thousands of times every day. No Supreme Court decisions in our
history have been violated so widely, so frequently, and for so long” (Grassley,
2015). States routinely deny the indigent the right to counsel in misdemeanor
prosecutions, which acts as a crucial check against the criminalization of poverty.
With competent counsel, people accused of misdemeanors are more likely to avoid
the imposition of exorbitant cash bail, spend less time in jail pretrial, avoid the loss
of employment and housing, and fight their cases in court instead of pleading to
avoid further deprivation of liberty.
This article conducts a case study of St. Louis courts to demonstrate how misde-
meanor prosecutions operate within no-lawyer-courts—courts that unconstitutionally
allow criminal defendants to go unrepresented. After reviewing empirical research
indicating that no-lawyer-courts are not isolated to Missouri, this article examines the
development of Supreme Court case law governing Sixth Amendment right to counsel,
arguing that the grant of discretion to lower courts to determine how to apply the
“actual imprisonment” test has wrought injustice in practice. Finally, this article
applies this framework to explain how criminal procedures in Missouri state courts
can deny indigent defendants their Sixth Amendment right to counsel, and further
explains these violations as the practical consequences of institutional failures,
ineffective judicial oversight, and flawed constitutional doctrine.
No-Lawyer-Courts Throughout the United States
Many scholars have made important contributions pointing out unfairness in how
lower courts implement Sixth Amendment rights in criminal procedures, especially in
misdemeanor prosecutions (Doucette, 1997; Feely, 1979; Hashimoto, 2007; King,
2013; Natapoff, 2012; Roberts, 2011; Smith & Maddam, 2011). Wheeler (1983) found
that represented defendants had better outcomes than those without representation,
regardless of charge or bail status. Another study found that individuals charged in
Baltimore City Circuit Court with nonviolent crimes, who were randomly assigned to
legal representation at their bail review hearings, were 2.5 times more likely to be
released on recognizance and 2.5 times more likely to have their bail reduced to an
affordable amount, compared to those defendants who did not receive representation
(Colbert, Paternoster, & Bushway, 2002).

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