The Right to Counsel: Why It s Important and How It Serves the Interests of all the Stakeholders in the Criminal Justice System

Transcription

1 The Right to Counsel: Why It s Important and How It Serves the Interests of all the Stakeholders in the Criminal Justice System Louisville Bar Association, Louisville Kentucky January 27, 2012 Robert C. Boruchowitz, Professor from Practice Director, Defender Initiative

2 Right to Counsel- - Everyday Practice and Procedure: The Nature of the Problem in Kentucky -- Budget Crisis? How to save taxpayer money with misdemeanor diversion programs that safeguard the public, protect the rights of the accused, reduce recidivism and conserve limited resources

3 Right to Counsel-- Everyday Practice and Procedure: The Nature of the Problem in Kentucky

4 Scope of the Problem Approximately 143,000 misdemeanor cases each year in Kentucky roughly one case for every 30 people in the state. Only 29.3% of all misdemeanor defendants were appointed a lawyer 100,000 not appointed. Most are poor. Even if 20% hired attorneys, 80,000 did not have a lawyer.

5 Example of problems

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9 Counsel not appointed, defendant pleads guilty, goes to jail for 20 days

10 What the defen dant signed and the court appro ved

11 What s wrong with that? No appointment of counsel or proper waiver No opportunity for defendant to understand options or consequences of conviction or to test government s case Violates Padilla v. Kentucky: the negotiation of a plea bargain is a critical phase of litigation for purposes of the Sixth Amendment right to effective assistance of counsel. Jargon and abbreviations likely not understandable by layperson defendants

12 Consequences of Conviction The defendant can be deported, denied employment, or denied access to a wide array of professional licenses. A person convicted of a misdemeanor may be ineligible for student loans and even expelled from school. Additional consequences can include the loss of public housing and access to food assistance, which can be dire, not only for the misdemeanant but also for his or her family. Fines, costs and other fees associated with convictions can also be staggering and too frequently are applied without regard for the ability of the defendants to pay the assessed amounts. Minor Crimes, Massive Waste, at

13 Other considerations There also is a cost impact as cases that might be dismissed with counsel continue and result in jail and probation. [20 % dismissal rate in Seattle] Racial disproportionality

14 Jefferson County Jail Population: 57% in custody people of color

15 Jefferson County census data (2010): White, 72.7% Black, 20.8% American Indian and Alaska Native, 0.2% Asian, 2.2% Native Hawaiian and Pacific Islander, 0.1% Hispanic or Latino, 4.4% Persons reporting two or more races, 2.2%

16 Common Practices Judges make a distinction at arraignment between felony cases, and misdemeanor cases, telling misdemeanor defendants they can resolve the case that day by talking with the prosecutor. The atmosphere in the court is one in which discussing a guilty plea with the prosecutor at arraignment is encouraged.

17 Common practices Judges rarely conduct an individual colloquy with defendants about their right to counsel or enter required findings about waiver of counsel before those defendants meet with prosecutors to discuss their cases. Judges rarely conduct individual plea colloquies with defendants to make sure they understand the rights they are waiving or the sentence they are risking, even when they are sentencing them to jail, except in DUI cases. Judges frequently impose jail time for defendants who are accused of contempt for failing to comply with conditions of probation, without fully advising the defendants of their right to counsel or conducting a fact finding hearing on the allegations. Judge tells defendant explicitly or implicitly that pleading guilty gives up right to lawyer

18 One Example One judge asks defendants to raise their hand if they want a lawyer. This violates Kentucky law: RCr 3.05 Cautioning of accused; appointment of counsel: the judge shall appoint counsel to represent the defendant unless he or she elects to proceed without counsel

19 Commonwealth v. Terry, 295 S.W.3d 819, 820 (Ky. 2009). Noticeably lacking in this case is any colloquy between the trial court and Terry in which the trial court warned Terry of the hazards of self-representation or cautioned Terry about the possible consequences of waiving counsel. But we reiterate that a trial court may not expedite the docket by simply foregoing a Faretta hearing and permitting a defendant to proceed pro se.

20 Two Judges Have Been Disciplined For Not Complying with Right to Counsel Procedures not adequate to assure defendants understood rights to counsel, jury, silence

21 Pay or Stay One example Some judges order jail for defendants who have not paid fines and fees, with no hearing to determine whether it was a willful failure and no lawyer. Courts that consider failure to pay to be contempt, offering purging by one day of jail for every $50 owed, without a hearing, are denying due process by not having hearings on willful failure, and sometimes treating a probation violation as contempt. For the defendants who did not have counsel or properly waive counsel, jailing them for a violation of probation is unconstitutional under Alabama v. Shelton.

22 Judge Suspended For Summary Contempt Proceeding the court may not exercise that power without holding a hearing that provides the person with advance notice of the contempt proceeding and with a full opportunity to be heard and that is conducted in full accord with a person's rights to due process of law (including right to assistance of counsel, right not to answer questions that could result in criminal sanctions, the right to cross examine witnesses, and the privilege against self-incrimination). Gormley v. Judicial Conduct Comm'n, 332 S.W.3d 717, 726 (Ky. 2010) [citing Commission ruling]

23 Alabama v. Shelton, 535 U.S. 654 (2002) We hold that a suspended sentence that may "end up in the actual deprivation of a person's liberty" may not be imposed unless the defendant was accorded "the guiding hand of counsel" in the prosecution for the crime charged.

24 Argersinger v. Hamlin, 407 U.S. 25, (1972) Counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison, and so that he is treated fairly by the prosecution. In addition, the volume of misdemeanor cases, far greater in number than felony prosecutions, may create an obsession for speedy dispositions, regardless of the fairness of the result. The Report by the President's Commission on Law Enforcement and Administration of Justice, The Challenge of Crime in a Free Society 128 (1967), states: The calendar is long, speed often is substituted for care, and casually arranged out-of-court compromise too often is substituted for adjudication. Inadequate attention tends to be given to the individual defendant, whether in protecting his rights, sifting the facts at trial, deciding the social risk he presents, or determining how to deal with him after conviction. The frequent result is futility and failure.

25 Rothgery v. Gillespie County, 554 U.S.191 (2008). the right to counsel guaranteed by the Sixth Amendment applies at the first appearance before a judicial officer at which a defendant is told of the formal accusation against him and restrictions are imposed on his liberty.

26 Policy Considerations Fairness Fundamental rights are being denied to thousands of people in the places that should protect them the most. Perception of public: Their respect for American justice is undermined when they experience the problems described here.

27 What Should Happen Defenders should meet with defendants and advise them of their rights before court and be available to represent them at the first hearing. Judges should not encourage talking to prosecutors without counsel Judges should have individual colloquies with defendants on their right to counsel and appoint counsel to eligible defendants unless a proper waiver is taken. Judges should have individual colloquies with defendants who are entering guilty pleas. Judges should have real hearings with counsel on alleged contempt or probation violations.

28 Budget Crisis? How to save taxpayer money with misdemeanor diversion programs that safeguard the public, protect the rights of the accused, reduce recidivism and conserve limited resources

29 Ways to Reduce Costs and Free Up Resources to Provide Counsel Diversion Marijuana Possession Cases Suspended Driver License Cases Shoplifting Cases Prostitution Criminal Trespass There are ongoing efforts to expand diversion and to reclassify offenses as non criminal, including by KCDL.

30 Opportunities Reduce need for lawyers while recognizing importance of providing lawyers when they are needed Reduce burden on all parts of the system Save money that can be re-invested in diversion alternatives that can save more money and in providing counsel for people who need them. Some diversion programs can reduce recidivism Re-licensing programs can actually increase revenue

31 One Major Possibility Reclassification to Non-Criminal Violations

32 Removing cases from the criminal court system either by diversion or treating them as non-criminal violations can save hundreds of thousands of dollars.

33 Saving $1 Billion per Year Nationally By diverting or reclassifying these offenses as non-criminal violations, local and state governments could save hundreds of millions, perhaps more than $1 billion per year. In the process, as outlined in the NACDL report, the reduced burdens on millions of defendants would allow them to work and to meet their obligations, and the unfairness related to racial disparity would be reduced.

34 Scope of Problem Tremendous volume and cost of cases. Jefferson County: 43,000 people booked into jail each year Jail cost per day is $64.35 or $23,488 per year for one person. Cost to House Per Day: Main $64.35 C.C.C $38.15 H.I.P $9.90

35 Most Common Charge at Booking: Traffic

36 2011 Jail Bookings for Citable Offenses 91 whose only charge was for Misdemeanor possession of marijuana 387 for shoplifting under $ for criminal trespass 2 nd degree 42 for buying or possessing drug paraphernalia 42 for operating with suspended or revoked operators license 8 no operators moped license

37 Possible Savings Just for Jail 644 jail days if each of those arrested spends only one day in jail $41,441 in jail costs if only one day served

38 Additional Court and Attorney Costs 644 misdemeanor cases=1.16 defender attorney caseloads per year A University of Oregon study found that the marginal cost of prosecuting and convicting a misdemeanor in Oregon was $1, Not prosecuting 644 cases would save $1.08 million at that cost per case Even if Louisville costs are only half of Oregon s, savings could be $540,000 per year.

39 Other Areas Worth Exploring

40 Why Are these Traffic Offenses Crimes? If the 4831 People Jailed for Traffic Spend Only One Day in Jail, Removing Them Would Save $310,000 per year in Jail Costs

41 Public Intoxication 1838 cases If half of them were not jailed, at least $59,000 for one day of jail costs could be saved

42 Racial Disproportionality September Jail Bookings 267 possession of marijuana charges, of which 160 were for black defendants, or 59.9%. 260 driving while suspended or revoked charges; 120 (46.1%) were for black defendants.

43 September bookings 41.1% of the 158 disorderly conduct second degree charges were for black defendants. There were 125 moped charges. 69 (55.2%) were for black defendants, 22 (17.6%) for Hispanic defendants.

44 September There were 242 misdemeanor drug paraphernalia (buy-possess) charges. 71 (29.3%) were for black defendants, 2 Hispanic, the rest for white defendants There were 194 charges for criminal trespass third degree. 93 (47.9%) were for black defendants

45 Held 12 hours for traffic? B M B M B M 09/05/ :33:51 09/05/ :33:51 09/05/ :33:51 09/05/ :16: V SPEEDING 20MPH OVER 09/05/ :16: V FAILURE TO WEAR SEAT BELTS 09/05/ :16: M B OPERATING ON SUSPENDED OR REVOKED OPERATORS LICENSE

46 Jail time While many of these misdemeanor defendants were released in a day or two, others spent three weeks or longer in jail.

47 January 23, 2012 data Jail complex Non supp Misd: 7 Traffic: 3 Crim Tresp: 10 ContSubMisd: 2 CCC Non supp Misd: 17 ContSubMisd: 5 HIP: Non supp Misd: 27 CrimTresp:3 ContSubMisd: 6

48 Alternatives Alternatives Divert more of these cases and re-classify some misdemeanors as non-criminal violations

49 Non-Support 19 Misdemeanor non-support charges booked in in September [10 black, 9 white] Most were on warrants Four who were not on warrants were still in custody on October 24

50 An Alternative to Traditional Prosecution of Non-Support Cases King County, Washington two-track approach Can reduce costs by taking jail off the table in the first track.

51 Alternatives to Suspended Driver Cases Pre-filing diversion Re-licensing programs

52 King County, Washington Diversion and Re-Licensing Program Defenders, prosecutors, judges, and county officials were able to establish a diversion and re-licensing program for suspended driver s license cases by building a coalition of political and judicial leaders that began with an alliance between the defenders and the prosecutors. An evaluation of the first year of the program found that it returned $2 for every dollar spent, cut the jail population, and helped people get their licenses back.

53 From Mary Muramatsu, Spokane City Prosecutor

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60 Savings in Spokane Washington Diversion of Suspended Driver Spokane Population 208,000 License Cases 46 per week, about 2400 cases per year At 400 cases per public defender per year, six defenders needed for those cases. Base salary for starting PD is about $55,000 per year. Benefits, etc. adds about $15,000 per year. Total salary range = $70,000 to $90,00 per year. $420,000 to $560,000; about ONE-HALF MILLION DOLLARS PER YEAR for defenders. Office of the Spokane City Prosecutor 909 W. Mallon Spokane, WA Ph: (509)

61 City of Spokane Diversion Over the last year, the City of Spokane has diverted 2292 DWLS3 stand alone citations. Those cases, because they were infractions, never went to warrant and therefore never spent a single day in jail. Never had a public defender assigned to them. Never went much beyond a month to resolve, at most coming to court only twice. The majority only had one court date. The result was less time processing these cases, and that means fewer people handling them, and a far more abbreviated schedule toward resolution. This has undoubtedly reduced the costs to the City for the prosecution of those cases. [From city prosecutor office]

62 Impact of Relicensing Program In 2011 to date, a total of 1,805 people participate in the relicensing program in Spokane and the participating jurisdictions (Spokane Municipal, Spokane District, Cheney, Airway Heights, Medical Lake, Pend Oreille District Court). 4.8% of those were terminated from the program, but half of those were allowed to re-enter the program. Because of their participation in this year alone, a total of $1,722, is now pulled out of collections and is now being paid on by participants of the program. That amount is not yet collected; actual monies collected thus far on fines in 2011 alone were: Spokane District $306, Spokane Municipal $285, Pend Oreille $ 3, Cheney Municipal $ 2, Medical Lake Municipal $ 2, Total =$600, previously uncollectable fines, about a third of what is owed.

63 Spokane Since our relicensing program began in June of 2008, $8,926, has been pulled out of collections and people in the program since that time are paying toward those previously uncollectable fines. Spokane District Court has actually collected $968,664.20; Spokane Municipal has collected $946,678.09, Pend Oreille has collected $13, and so on. The diversion program feeds the relicensing program. Now the court system and the relicensing program are connected, and the cost of going through criminal court to untangle DWLS 3 rd degree cases is avoided. [City prosecutor s office]

64 Costs saved Time saved on court personnel: clerks, judges, etc; attorney work time reviewing these cases, making offers, conveying the offers, etc; failures to appear in court and the cost of issuing warrants; warrants being served and the resources spent on those arrests; jail costs as the result of people serving jail time after being arrested on their warrant; the cost of utilizing law enforcement resources on traffic stops when the license is suspended or when there is a warrant; mailing costs associated with court dates and notices sent. Mary Muramatsu City Prosecutor Spokane City Prosecutor's Office 909 W. Mallon Spokane, WA (509) mmuramatsu@spokanecity.org

65 LEAD Seattle-King County Law Enforcement Assisted Diversion Partnership of Defenders, Prosecutor, City Attorney, Law Enforcement, Community and Business Leaders Offers drug sale arrestees treatment instead of jail and prosecution Pilot project--officer discretion

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67 PRE-BOOKING DIVERSION OF LOW-LEVEL DRUG OFFENDERS TO A HIGH QUALITY, COMMUNITY-BASED INTERVENTION

68 LEAD Goals Reduce number of low-level drug offenders entering criminal justice system. Redirect public safety resources to more pressing priorities, such as serious and violent crime. Improve individual and community quality of life through research-based, public health-oriented interventions. Sustain funding for alternative interventions by capturing and reinvesting criminal justice system savings.

69 Cutting prison costs is a worthy cause Washington Post Editorial April 17, 2011 THE NAACP and Americans for Tax Reform (ATF) agree on very little. But Benjamin Jealous, president of the liberal civil rights group, recently found himself linking arms with ATF s conservative president, Grover Norquist. The cause: prison reform. The two view the subject through different lenses: The NAACP is primarily concerned with social injustices associated with the high rate of incarceration and the disproportionate impact on minority communities; Mr. Norquist focuses on the mounting costs to taxpayers of operating ineffectual prison systems. But both agree that millions of dollars are wasted each year on flawed policies that may not provide the best or most cost-effective means to protect society. The acknowledgment of the problem by Mr. Norquist and other notable conservatives, including former House speaker Newt Gingrich and David A. Keene of the American Conservative Union, should help propel reforms that have been shunned by lawmakers fearful of being labeled soft on crime.

70 The United States is the world s leading jailer, incarcerating some 2.3 million people at an annual price tag of $70 billion. Roughly 500,000 inmates almost 25 percent of those behind bars have been put away for drug offenses. A significant number are hit with lengthy and costly mandatory minimum sentences. Thousands of offenders out on parole are reincarcerated for technical offenses, such as failing a drug test, that could more effectively and more inexpensively be addressed in a non-prison environment. An NAACP report released last week is the most recent to argue convincingly that public safety can be preserved and tax dollars saved with smarter policies. The group favors, among other things, the elimination of mandatory minimums for drug crimes; diversion programs rather than incarceration for some addicts; making parole more available for those who complete educational or rehabilitation programs; and using scientific screening methods to determine good candidates for parole to better ensure that those released will be able to successfully reintegrate into society. But the levels of incarceration are financially unsustainable and in many instances counterproductive. While money should not drive policy in this area, the country would be foolish to forgo opportunities for sensible reforms that also ease the pressure on public coffers.

71 Recidivism slippage Louisville Courier Journal Editorial April 17, 2011 The high recidivism rates cited in a new report from the Pew Center on the States are just the latest reminder of the degree to which lock-'em-upand-throw-away-the-key policies were neither sensible nor economically sustainable. Instead, what we got was a prison-industrial complex, which a few years ago saw 2 million people incarcerated in the United States one of the highest incarceration rates in the world. As for the Pew study findings, we can never know how many of the 4 of 10 recidivists from 2004 might have benefitted from alternatives to incarceration. But at least, as Adam Gelb, director of the Pew's Public Safety Performance Project, said: What we're really starting to see now is the triumph of science over sound bites. That's because, he added, states are relying on data to drive their corrections policies instead of tough-on-crime rhetoric. And none too soon. That rhetoric has cost American taxpayers' billions and, unfortunately, with too little bang for those big bucks

72 Seattle City Attorney and City Law City Attorney Pete Holmes stopped all prosecutions for simple possession. SMC 12A Enforcement Priority -- Marijuana. A. The Seattle Police Department and City Attorney's Office shall make the investigation, arrest and prosecution of marijuana offenses, where the marijuana was intended for adult personal use, the City's lowest law enforcement priority.

73 Two Washington Legislators, One Republican, One Democrat, Argue for Decriminalizing Marijuana We now have decades of proof that treating marijuana use as a crime is a failed strategy. It continues to damage the credibility of our public health officials and compromise our public safety. At a fundamental level, it has eroded our respect for the law and what it means to be charged with a criminal offense: 40 percent of Americans have tried marijuana at some point in their lives. It cannot be that 40 percent of Americans truly are criminals. Jeanne Kohl-Welles & Toby Nixon, Time for Washington state to decriminalize marijuana, SEATTLE TIMES, Aug. 20, 2009, html

74 Impact of diversion program (1) Taking these cases off of the arraignment dockets and avoiding the need for public representation, (2) Eliminating any possibility of jail on these cases as a sentencing outcome, (3) Eliminating the numerous court dates that result from these cases being on a criminal docket and the warrants that inevitably result from failures to appear. (4) Preventing a chronic use of the jail for warrant stays prior to adjudication on these cases.

75 Dramatic Impacts At an estimated cost of between $1000 and $1700 a year to prosecute a misdemeanor case, imagine the savings if hundreds or even thousands of cases were diverted out of court, with no need for judges, court clerks, prosecutors, defenders, or jailers to handle those cases.

76 Recommendations Consider expansion of diversion programs to include suspended driver license, possession of marijuana, criminal trespass cases Research and analyze jail population data to determine impact of existing arrest, warrant, detention and prosecution practices Consider options to change existing policies, including reclassification of some misdemeanors to non-criminal violations.