Even after Gideon , persons charged with misdemeanor of- fenses were not guaranteed appointed counsel, and the mis- demeanor courts were rife with abuse. In 1968, five years following Gideon, Professor John M. Junker observed:
In addition, the sentence and the collateral consequences can be quite different depending on which crime is found to have been committed. A lawyer also is needed to help the accused person sort out the implications of plea bargains offered by the prosecutor.
[A] large majority of the [people] an- nually charged with non-traffic misde- meanors must, if they are financially unable to hire an attorney, face the be- wildering, stigmatizing and (especially at this level) assembly-line criminal justice system without the assistance of counsel. The misdemeanor prosecu- tion is the “Appalachia” of the crimi- nal justice system. 16
As the Court stated in its decision in Argersinger :
The requirement of counsel may well be necessary for a fair trial even in a petty- offense prosecution. We are by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment are any less com- plex than when a person can be sent off for six months or more. 20
It is for this reason that, in Argersinger v. Hamlin , the U.S. Supreme Court extended the right to counsel to misde- meanor defendants. 17 The Court further protected the right to counsel in Alabama v. Shelton , holding that a defendant must have had counsel in the underlying adjudication for incarceration to be imposed for a violation of misdemeanor probation. 18 The Court reasoned:
Attentive defense counsel is particularly important in mis- demeanor courts because the volume of cases means that prosecutors and judges too often and too easily can over- look factual issues. Indeed, the Supreme Court observed that the volume of misdemeanors 21 results in pressure for “speedy dispositions,” and stated that there is significant evidence of “prejudice” resulting from “assembly-line jus- tice” in misdemeanor courts. 22
12
Deprived of counsel when tried, con- victed, and sentenced, and unable to challenge the original judgment at a subsequent probation revocation hear- ing, a defendant … faces incarceration on a conviction that has never been sub- jected to “the crucible of meaningful ad- versarial testing.” 19
Consequences of a Misdemeanor Conviction
There is a prevailing misconception that misdemeanor con- victions do not truly affect a person. In fact, a common question received during the research for this project was, “Why are you spending time on misdemeanors?” Underly- ing this comment is the belief that it matters less whether the justice system is accurate in misdemeanor cases. But, the consequences of a misdemeanor conviction can be dire. As the Supreme Court noted in deciding Argersinger , “the prospect of imprisonment for however short a time will sel- dom be viewed by the accused as a trivial or ‘petty’ matter and may well result in quite serious repercussions affect- ing his career and his reputation.” 23 Indeed, a wrongful con- viction, even in a minor case, is pernicious. If the constitutionally mandatory processes of our criminal jus- tice system cannot determine accurately a person’s guilt or innocence of a minor criminal charge, court outcomes are subject to question in all cases. In the years since the Argersinger decision, the collateral consequences 24 that can result from any conviction, in- cluding a misdemeanor conviction, have expanded signifi- cantly. These consequences can be quite grave. The defendant can be deported, 25 denied employment, or denied access to a wide array of professional licenses. 26 A person convicted of a misdemeanor may be ineligible for student loans and even expelled from school. 27 Additional conse- quences can include the loss of public housing and access to food assistance, which can be dire, not only for the mis- demeanant but also for his or her family. 28 Fines, costs and other fees associated with convictions can also be stagger-
Why Are Lawyers Needed in Misdemeanor Cases?
No one should underestimate the importance of counsel ad- vising a person of his or her rights in any criminal case. Even in a simple case, the law can prove complex. The law is not a fixed set of rules. It is always affected by the individual circumstances of a case. For example, one might think the law regarding murder is simple — one person can- not kill another. But, if the circumstances surrounding the killing show that the person who was killed was, in fact, the aggressor, the law becomes far less black and white, and the case becomes considerably more complex. This is no less true of misdemeanors. The law of trespass may seem obvious — either a person was on private prop- erty or the person was not. But, there are a number of fac- tors that can complicate a trespass case: Was the property obviously private or was there some reason to believe it was public property? Was there a warning, either posted or ver- bal? Was an event occurring that was open to the public? The answer to these questions can mean the difference be- tween innocence and guilt. Without an attorney to sort through all the facts and assess what is legally important, these critical distinctions too easily can be overlooked.
Minor Crimes, Massive Waste
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