Sixth Amendment Federalism.

• Author: Capozzi, Louis J., III

INTRODUCTION: MISDEMEANOR TRIALS IN MONTGOMERY COUNTY, PENNSYLVANIA I. EXISTING SIXTH AMENDMENT LAW ON THE RIGHT TO APPOINTED COUNSEL A. The Right-to-Counsel Revolution B. Scott v. Illinois C. Suspended Sentences D. using uncounseled Convictions to Enhance Sentences E. Summary of Sixth Amendment Law II. EXISTING STATE LAW ON THE APPOINTMENT OF COUNSEL A. A Typical Misdemeanor Case B. overview of state-Law Approaches to the Right to Counsel 1. Counsel in All Criminal Cases 2. Adopting the Authorized Imprisonment Test 3. Providing Counsel to Defendants Charged with Offenses Allowing Sufficient Lengths of Authorized Incarceration 4. Providing Counsel to Defendants Based on Fine Levels 5. States Not Guaranteeing More Protection than Scott 6. Following Scott but Rejecting Nichols C. How the States Arrived at their Present Laws 1. State Legislatures 2. Rule Promulgation 3. State Judiciaries and State Constitutional Law a. State Constitutional Texts b. State Histories c. State Precedents d. Different Approaches to U.S. Supreme Court Precedent D. The Reality on the Ground: Is the Right Being Honored? III. LAW AND POLICY: SHOULD THERE BE A RIGHT TO APPOINTED COUNSEL BEYOND WHAT SCOTT REQUIRES? A. Is There a Constitutional Right to Appointed Counsel in All Criminal Cases? 1. Federal Constitution 2. State Constitutions B. Policy Arguments For and Against a Broader Right to Counsel than Scott Requires 1. Policy Arguments in Favor of a Broader Right 2. Policy Arguments Against a Broader Right 3. Assessment IV. HOW A BETTER FEDERALISM IS ESSENTIAL TO FIXING MISDEMEANOR JUSTICE A. A Federalist Success Story on Paper B. Hold the Applause C. Pursuing New Ideas Within Our Federalist System 1. Non-Prosecution or Reclassification 2. Diversion 3. An Inquisitorial System a. Jury Trial b. Plea Bargaining c. Dual Trial Court Systems d. Appeals e. Personnel D. A Better Federalism CONCLUSION INTRODUCTION: MISDEMEANOR TRIALS IN MONTGOMERY COUNTY, PENNSYLVANIA

On a Tuesday afternoon in King of Prussia, Pennsylvania, a magisterial district judge is conducting shoplifting trials. His court, the judge explains, "gets a ton of business" from shoplifting at the massive King of Prussia Mall across the street. The defendant in his next case, Mindy, is accused of stealing sixty dollars' worth of clothing from a store. Outside the courtroom, the defendant had struck a bargain with the police officer prosecuting her case. She would plead guilty to shoplifting, she offered, if she could get a payment plan for the fine. The police officer is fine with that arrangement.

As the trial begins, the judge takes control of the proceeding. He asks the defendant a variety of questions about her background, establishing that she has a job as a store clerk and no criminal record. After Mindy tells the judge she wishes to plead guilty, the judge asks the police officer if the Commonwealth would accept a guilty plea to the lower offense of disorderly conduct. The police officer agrees. The judge tells Mindy he is cutting her a "major break" and asks her to also thank the officer, which she happily does. The judge then imposes a fine of $160 and agrees to a payment plan by which Mindy will pay $20 per month. After Mindy leaves, the judge explains to me that a retail theft conviction would cost Mindy her job. Because she was a first-time offender, he wanted to cut her a break. As he put it, "peoples' lives are complicated, and I try to cut people a break unless someone's an idiot."

The informal proceeding took all of about ten minutes. There was no formal submission of evidence or cross-examination. And yet Mindy came into the courtroom without a criminal record, and left with one. Perhaps most interestingly, there was no defense lawyer. Indeed, there were no defense lawyers at any of the twelve criminal trials I watched that morning in Montgomery County.

Criminal law scholarship has typically covered misdemeanors and petty offenses only lightly. (1) These labels encompass a variety of offenses, including driving with a suspended license, disorderly conduct, drug possession, shoplifting, harassment, underage drinking, minor assault, vandalism, and even hunting oysters without a license. (2) Compared with felonies and capital cases, the stakes may seem low. But misdemeanors dominate our criminal justice system. About fifteen million misdemeanors are processed in the United States each year, easily dwarfing the number of felonies. (3) Misdemeanors matter.

In misdemeanor cases, a significant percentage of criminal defendants do not have a federal constitutional right to appointed counsel. In Scott v. Illinois, (4) the U.S. Supreme Court held that states are obligated to appoint counsel to indigent defendants only when a sentence of imprisonment is imposed. (5) When other criminal punishments are imposed--most commonly fines--the Federal Constitution does not require States to appoint counsel. (6) If that does not sound like much, it is worth remembering that many, if not most, criminal charges brought in the state courts are low-level misdemeanors that are generally punished solely with fines. (7) Thus, States have the discretion not to appoint counsel in a large portion of criminal cases.

Most scholars who have considered the right to appointed counsel in misdemeanor cases argue Scott v. Illinois was erroneous and should be overruled. (8) Indeed, some scholars denounce the decision in strong terms, declaring it at odds with the Supreme Court's important decision in Gideon v. Wainwright, (9) which guaranteed indigent defendants the right to appointed counsel in felony cases. (10)

This Article takes a different approach, focusing on the important role of the States in defining and actualizing the right to counsel in misdemeanor cases. This important topic, which affects millions of Americans every year, has received surprisingly little attention from academics. (11) This Article thus serves an important descriptive function and takes a fresh analytical approach to the challenge of improving our nation's misdemeanor justice system. Instead of advocating that the Supreme Court force a one-size-fits-all solution on the States by mandating appointed counsel in all criminal cases, this Article endorses a federalist approach to the issue. But it does not extoll the status quo. Instead, this Article champions a "better federalism" in the area of misdemeanor justice, whereby states try out bold and innovative solutions, breaking free of the inertia that sometimes robs federalism of its full potential.

Part I reviews existing federal law, documenting how the Supreme Court left the States some room to define the scope of the right to appointed counsel. After describing the typical misdemeanor proceeding, Part II surveys the laws of each state on the right to appointed counsel and explores how they arrived at them, providing the first detailed account of state law in this area. In summary, thirty-four states guarantee a broader right to appointed counsel than required by Scott. Among the thirty-four states with a broader right, the state legislatures, rules committees, and judiciaries have all played important roles. But the state legislatures have had the most impact, acting as the first mover in expanding the right to appointed counsel in twenty-one of the thirty-four states.

Part III considers the legal and policy arguments for and against a broader right to appointed counsel. Part III.A considers whether existing law is legally correct. Challenging the orthodox view among scholars, it argues that Scott was correctly decided: the Federal Constitution does not guarantee the right to appointed counsel in all criminal cases. It also notes that the case for a broader right to appointed counsel is stronger under some state constitutions. (12) Of course, the courts are not the only government actors that define rights, and thus Part III.B turns to the question of whether it is good public policy to provide counsel in a broader range of cases than the U.S. Supreme Court requires. This Article argues there is no one-size-fits-all answer, recognizing that the optimal approach for a state or locality depends largely on the jurisdiction's unique characteristics and needs.

Above all, this Article contends that federalism is the key to building a better misdemeanor indigent defense system, and Part IV explains how. Part IV.A acknowledges that, on paper, the scope of appointed counsel is a federalism success story. States have not fit the stereotypical account that portrays them as hostile to criminal defendants' rights. (13) Thirty-four states have guaranteed a broader right to appointed counsel than the U.S. Supreme Court requires.

Still, the state of our misdemeanor indigent justice system is troubling. Reports of routine failures to honor the existing right to appointed counsel abound. The right of misdemeanor defendants to effective appointed counsel is largely an unfunded and unfulfilled mandate. And where the law is followed, the dominance of uncounseled or barely counseled guilty pleas and cookie-cutter sentences raises serious questions about whether misdemeanor defendants are getting individualized adjudications. The fruits of federalism in this area today do not truly warrant celebration.

Although the States bear some blame, this Article does not echo the chorus of scholars demanding States allocate more money to indigent defense. Instead, this Article calls on States to try out innovative ideas for improving misdemeanor justice in America, even going outside the traditional Anglo-American adversarial system. Part IV.B suggests three approaches that jurisdictions could take toward misdemeanors: declination, diversion programs, and an inquisitorial model of adjudication. The purpose of this Article is not to endorse one of those approaches, but rather to shift the conversation away from seeking a one-size-fits-all solution from the U.S. Supreme Court. Instead, we...