Every high school civics student is taught that “in all criminal prosecutions,” the Sixth Amendment guarantees defendants “assistance of counsel.” It was not until 1963, however, that the Supreme Court’s Gideon decision extended that right to all those accused of felonies in state-court proceedings. Yet most defendants still did not benefit because 90% of them were tried for non-felony offenses in lower state and local courts—the so-called sausage factories of the criminal-justice system. Not until a 1972 decision involving a Floridian convicted without a lawyer of a misdemeanor did the court finally rule that “no person may be imprisoned for any offense . . . unless he was represented by counsel at his trial.” Legal experts viewed Argersinger v. Hamlin as a landmark commanding wholesale change in criminal-justice procedures.
Token Reform. Did the change happen? Not at all, according to a comprehensive survey being released this week by Boston University’s Center for Criminal Justice. The five-volume report, product of an 18-month study of nine sample cities, concludes: “Compliance has generally been token in nature,” reform “has been chaotic and uneven at best,” and the assurance of legal representation remains “an empty right for many defendants.”
To judges long-pressed by the glut of an estimated 5 million non-felony cases, the key words of Argersinger must have been those permitting “a knowing and intelligent waiver” of the right to counsel. That phrase, says the center, “has resulted in a 95% waiver rate in some lower courts.” In Houston and Belle Glade, Fla., according to the report, “it is assumed that a defendant has waived counsel unless he aggressively asserts .[the] right.” In other jurisdictions, “defendants perceive, correctly or not, a tacit rule of court that those who ask for counsel are treated more harshly.” Defendants of modest means are supposed to get free lawyers, but the financial screening can be arbitrary. In Birmingham, for example, center staffers found that the “posting of bail was used to declare a defendant financially ineligible” for free legal help.
Even when lawyers are made available, the quality of representation is frequently dismal. In some cities, public defenders have picked up the new mass of defendants without a commensurate increase in staff. Elsewhere, court-assigned counsel are used—”usually novices gaining experience, or court ‘regulars.’ ” Whoever the lawyer is, he usually meets his client for the first time only minutes before the trial. The study calls this “hallway advocacy” and criticizes “most of the legal profession” and the law schools for shunning the lower criminal courts and letting them remain “invisible and disreputable.” To make new lawyers aware of the problem, the center recommends that law students be hired to assist lawyers who work in such courts. It also endorses widespread use of prepaid insurance for legal services.
The Boston center suggests that free counsel be given to all whose income and savings cannot absorb the jolt of paying for a defense—or even to anyone who merely says he cannot afford a lawyer. In addition, the report urges that judges end the current practice of weeding out those offenses for which they do not intend to give authorized jail sentences. Legislators, not judges, should remove the possibility of incarceration for specified offenses, says the center.
Because such improvements would still further increase the intolerable Argersinger load, Study Director Sheldon Krantz, 36, does concede the need to “reallocate resources.” To this end the center favors removing criminal sanctions for prostitution, gambling, marijuana possession, vagrancy and—most importantly—drunkenness, which accounts for 20% of arrests nationwide. The center would also divert traffic violations, family fights and even shoplifting and some white-collar offenses from criminal courts to administrative proceedings, arbitration or civil courts where restitution and fines could be imposed.
If criminal courts did not have to deal with the kinds of offenses suggested by the Boston group, work loads would be cut by perhaps as much as half. The report may have compromised its impact, however, by adopting a visionary tone. In effect it says that since everything is wrong, everything should be made right. Still, the bleakness of its initial conclusions could encourage at least some reforms. Boston has already begun using tape recorders to provide a record, as suggested, of lower criminal court proceedings. Miami Attorney Bruce Rogow, who argued the Argersinger case, remains hopeful. “The law,” he says, “achieves justice by little steps.”
