Statewide systems often provide local courts with more encompassing guidance, rules and funding, which can translate to indigent defense provision in misdemeanor cases. For example, Colorado’s Supreme Court has published a policy stating, “counsel will be provided at state expense for indigent persons in all cases in which actual incarceration is a likely penalty,” unless there is a waiver of the right to counsel. Minnesota passed a law in 2012 expanding its right to counsel statute to encompass not just misdemeanors but the appeals of misdemeanors as well.
Due to the local nature of many state systems and the realities of funding differences, consistent policies do not always exist from county to county within a given state. Even states which provide services locally encourage uniform standards to the extent logistically possible. For example, Nebraska Revised Statute § 29-3906 states:
“In counties not having public defenders, the court may appoint an attorney licensed to practice law in this state to represent any indigent person who is charged with a misdemeanor offense punishable by imprisonment.”
To support awareness of the process for defendants, the Nebraska Supreme Court’s Uniform County Court Rules of Practice and Procedure § 6-1467 provides that every judicial district shall have a transparent process for appointment of counsel for indigent defendants and provide, in local rule, for the process. Defendants will know, upon reading the local rules, how their process for appointment operates.
Collateral Consequences of Plea Bargains
Further complicating the right to counsel in misdemeanors, a large proportion of misdemeanor cases (63%) are resolved through plea agreements and a small number (4%) are resolved through diversion or deferred sentences. Although these resolutions may not involve imprisonment (thus, no right to counsel is provided), they can have collateral consequences which might lead to imprisonment. For example, if a person is unable to complete a diversion program or fulfill the requirements of a plea agreement, a prosecutor can file charges that could lead to jail time.
Even in states considered to have strong public defense systems, many defendants meet with prosecutors to discuss plea agreements before speaking with counsel. Some defendants are incentivized to accept pleas before appointment of counsel, not realizing that taking a guilty plea and the accompanying criminal record could severely restrict access to employment, occupational licensing, housing, voting, education and other opportunities.
States are taking steps to help provide counsel at the earliest stages of trial in order to avoid unintended collateral consequences from a lack of counsel. In 2022 Illinois established a grant program for local defense funding—particularly at the very first stages of court, first appearance. Among other things, Illinois HB 1095 created “a grant program for counties with a population of 3 million or less for training and hiring attorneys on contract to assist the county public defender in pretrial detention hearings.” Additionally, the law requires the Public Defender Quality Defense Task Force to:
“Provide recommendations to the General Assembly and governor on legislation to provide for an effective public defender system throughout the state and encourage the active and substantial participation of the private bar in the representation of accused people.”
The Municipal Court Dilemma
If states do have guidance on providing counsel to misdemeanor cases, many times the system only provides misdemeanor representation in state court cases. Even where the state allows local government to pass local ordinances that carry jail sentences and to prosecute them in municipal courts, state public defender systems generally have no authority to ensure that poor people facing the threat of jail in these local courts are adequately defended.
It is estimated that 3.5 million criminal cases take place in city-run municipal courts—outside the reach of many states public defense systems. The map linked here uses the size of orange.
States routinely struggle to allocate scarce public defense resources to the best of their ability. In 2018, Colorado recognized this struggle by passing HB 1353, which created the defense counsel on first appearance grant program in the division of local government within the department of local affairs. Awards from the grant program are given to reimburse local government for costs associated with the provision of defense counsel to defendants at their first appearances in municipal courts. The grant program was originally funded with $1,853,037. The fund is scheduled to be sunset in September 2023, alongside an agency review of the program, but could be renewed by a legislative vote.
Indiana’s proposed 2023 state budget bill included a provision allowing the public defender commission to spend up to $6.3 million to public defense regions and counties to reimburse for up to 40% of the cost for misdemeanor cases. The budget has yet to pass the Senate, and the provision has been removed in subsequent amendments.
Important Question for Policymakers
Due to the wide variety of state defense systems and court structures, it may be hard for legislators to properly identify their own state’s or local systems’ gaps in providing adequate legal defense for indigent persons. Here are a few questions legislators can ask in their state to begin the process of determining if the promises of providing indigent counsel—started in Gideon 60 years ago—are being met by their state today.
- Do defendants have access to counsel in some or all misdemeanor cases?
- Do defendants have access to counsel before agreeing to plea deals?
- Do municipal courts have authority to prosecute offenses with the possibility of incarceration?
- What other types of cases involve the possibility of incarceration (e.g., contempt of court)?