January/February 2003, Page 25

Taking Alabama v. Shelton to Heart
By

I recently picked up the popular self-help book, Don’t Sweat the Small Stuff…and It’s All Small Stuff by Dr. Richard Carlson, commonsense ideas for finding balance in daily life that initially threw me off-kilter. In the book’s 100 numbered nuggets of self-help wisdom, number seventeen stood out as a bothersome notion: Surrender to the Fact that Life Isn’t Fair. 1

I found this objectionable because I believe that as community members we are obliged to work towards fairness in our daily interactions, especially in our professional lives. Fortunately, Dr. Carlson agrees when he writes: “The fact that life isn’t fair doesn’t mean we shouldn’t do everything in our power to improve our own lives or the world as a whole.”2

Applying this within the criminal justice context and the persistent challenge of providing counsel to the indigent, as professionals we had better not settle for unfairness as a norm. Especially in minor criminal cases, we need to “sweat the small stuff” more than we do. It is the attention to details that helps us identify unfairness, educate others, engender compassion, and move towards helpful action.

Fairness is in the details

Our Constitution, says the U.S. Supreme Court, does not accept that life just is not fair for poor people faced with minor criminal charges. In reaffirming Gideon’s3 Sixth Amendment right applicable to misdemeanor cases, the Court recently ruled in Shelton v. Alabama.4 that all people deserve qualified legal representation, no matter how serious or small the case.

Initially spelled out in Argersinger v. Hamlin,5 Shelton reaffirms that the right to appointed counsel applies to “small stuff” — even when the small stuff does not immediately involve incarceration. Shelton said judges may not impose suspended sentences, even in misdemeanor cases, unless the accused has a lawyer present. The Court reasoned that when a sentence of incarceration is imposed, even if it is immediately suspended, the Sixth Amendment right to counsel attaches because if the person violates the conditions then he is going to jail for the underlying offense, not a technical violation. Counsel is needed to challenge the underlying conviction for which a person may be incarcerated.

In commemorating Gideon’s 40th, we must also acknowledge Shelton. Unfortunately, just because the Supreme Court confirms a right in principle does not necessarily ensure it in practice. In too many jurisdictions Shelton’s principles exist only on paper for thousands charged with minor crimes. The reality is that some jurisdictions are purposefully ignoring Shelton. Many still fail to comply with Argersinger, decided 30 years ago.

Thirty-four states have statutes extending the right to counsel in cases where a sentence of incarceration is imposed but is suspended or conditioned upon compliance with the terms of probation. The National Legal Aid & Defender Association surveyed public defender offices revealing that simply because a statute exists does not mean that counsel is provided in these classes of cases. Even worse, in 16 states there is no such statute. In all these states, there is room for optimism because defenders now have a tool to force change, the Shelton decision, and a responsibility to do so. But as Edward Monahan, Deputy Public Advocate with the Kentucky Department of Public Advocacy, explains: “The dirty little secret of the criminal justice system is that most eligible people do not get defenders. In Kentucky, Shelton did not change the question. It just reiterated what we’ve long lived with. I think most defenders in their budget battles have been tackling the issue by asking for the money from the funders who do not give all that is asked for to do the job fairly. The defenders then place the limited, incomplete resources where it does the most good. The last in line are the low level misdemeanor cases and juvenile cases.”6

Why is Shelton so hard to enforce?

At a recent American Council of Chief Defenders meeting in Austin, Texas that included chief defenders and deputy defenders from around the country, the group was asked how they were responding to the Shelton decision. In some jurisdictions, Shelton’s constitutional protections are already in place, and representation is provided by existing programs. In other jurisdictions, there seem to be three connected reasons for not aggressively pursuing representation of people charged with “small stuff”:

• Resources: Most states are experiencing significant budget cuts. Concerned about their ability to meet their responsibilities in more serious matters if they were assigned a high volume of misdemeanor cases without additional resources, some managers lack confidence in their ability to obtain the resources needed to take on the additional work.

Robert C. Boruchowitz, the Executive Director of the King County Public Defender Association in Seattle states that Shelton does raise significant resource concerns (as the Supreme Court notes throughout its opinion), but this does not necessarily mean that costs must increase. There are creative ways to deal with Shelton. He states:

The lack of adequate resources is the big issue. But the lack of resource is not just a problem for only the defender community; it’s also a problem for local governments. In lean budget times our prosecutors and courts are looking to cut costs. Defenders can get local governments to think about diversion and alternatives to incarceration or to decriminalize certain conduct. Enforcing Shelton does not necessarily have to result in increased costs and burdens on the criminal justice system or county budgets.7

• Mandate: Public defender offices or assigned counsel managers look to their program’s authorizing language, typically a statute or legislative mandate, to ascertain case responsibilities or scope of public defense representation. For those lacking a mandate covering minor offenses such as probation revocations or the class of cases described in Shelton, administrators are waiting to see how the Shelton’s decision will play out in their jurisdiction and neighboring states.

• Culture: Many public defense staffs are overworked in terms of caseloads and lack of adequate resources. In busy offices, the more serious cases understandably get more attention and more experienced lawyers. Although most misdemeanors are suitable as a training ground for new lawyers, there is cultural resistance inside the defender hierarchy to assign experienced lawyers to these minor cases when needed, which again raises the question of resource allocation.

Sweat the ‘small stuff’ to avoid collateral consequences

The most important reason to “sweat the small stuff” is because a loss of liberty, no matter how brief, may have serious collateral consequences. These consequences vary from the denial of public housing and other benefits to ineligibility for certain licenses related to employment. For many, the most serious consequence of a misdemeanor conviction is the impact on immigration status. The Gideon/Shelton line of cases adds new dimensions to what it now means to provide quality representation in both criminal and immigration cases as lawyers must seek to challenge prior un-counseled convictions as unconstitutional and not simply argue the sentence itself is unconstitutional.8 Unconstitutional convictions should not impact negatively one’s immigration status.

There are other less visible, but consequential reasons, to challenge these small-stuff convictions, such as damage to one’s reputation in the community or the long-term impact of having a criminal record, made complicated by the fact these unlawful convictions enter one’s record on a computer network. A petition of habeas corpus challenging the legality of an uncounseled sentence of incarceration may be appropriate.

Of late, lawyers, policy analysts and others interested in an equitable justice system are paying more attention to the impact of collateral consequences. Indeed, the American Bar Association’s Criminal Justice Section Council has established a new set of standards for dealing with collateral consequences.9 A new book edited by Marc Mauer and Meda Chesney-Lind, Invisible Punishment: The Collateral Consequences of Mass Imprisonment, is an excellent description of the lasting impact a conviction and incarceration can have on one’s life, family, and community. Fortunately, judges, prosecutors, defenders, lawmakers and policy analysts are taking note of the individual and systemic collateral consequences.

Sweat the ‘small stuff’ to avoid the big stuff later

Another reason to pay attention to minor crimes is that these cases often reflect social problems inside specific geographic communities or demographic groups. Large numbers of minor cases can be a source of important data and insight into the health of a community. Problems, such as addiction, could be addressed early, before these problems become intractable.

Misdemeanor cases often present the best opportunity to engage restorative justice initiatives. Rehabilitation and restitution can be most acceptable and effective for minor offenses. The underlying problems that brought the offender into the system — addiction, domestic unrest, mental illness, impulse control — are most successfully addressed by tapping the expertise of social workers, mental health experts or other non-lawyer professionals. Providing wrap-around social services (often called holistic advocacy or whole-client representation) can be a form of crime prevention in that more people are working with an individual to prevent the future “big stuff” (i.e., felonies). Early intervention of legal counsel who have access to non-legal social services may reduce recidivism for minor offenders.

Community problem-solving around small stuff

Defenders should “sweat the small stuff” because it is the most fertile area for defenders and community leaders to collaborate on problem-solving justice initiatives. Some innovative defenders recognize the importance of community outreach to access resources and are therefore practicing “community defense.” They know that community leaders are a strong voice in rallying others to support innovative programs for accused persons charged with minor crimes and can be a vibrant source of grass-roots support during tough political battles. Neighborhood leaders and faith-based communities in the work of public defense provide insight into community members’ problems as well as solutions.

Defenders can benefit from paying attention to minor cases because these cases provide fertile ground to try new ideas and approaches for reducing recidivism. Nationwide, public defense leaders are implementing innovative approaches to providing counsel. They are rethinking the role of defense by reaching out to traditional and unlikely allies. Community defense, holistic advocacy or wrap-around services for minor offenders are significant reforms to the business-as-usual public defense model. Because funding authorities are generally not keen to start innovative holistic programs or restorative justice initiatives with violent felons, defenders should see misdemeanor cases as opportunities for innovation, attitude-shifts and improved representation of clients.

In noting Gideon, how do we enforce Shelton?

Enforcing Shelton will be a long uphill battle. Litigation will likely be necessary in some states and counties, but lawsuits should not be initiated by public defense organizations. Challenges to systemic inequities and constitutional violations should be left to
organizations like the ACLU.

Ed Monahan of the Kentucky Department of Public Advocacy says, “We cannot expect defender leaders to be effective very often in bringing a lawsuit. Directly litigating against the funding authority would likely do long-term harm to the clients by doing damage to defender leaders’ relationships with legislators, the courts and the governor. There are smarter, more effective ways for defender leaders to persuade their political authorizers, as Harvard’s Mark Moore in ‘Creating Public Value’ teaches.”10 To commemorate Gideon, public defense program leaders should spend their time building stronger coalitions with more players in the system and in their communities.

Defenders need to take an active role in educating all players about the Shelton decision. In their meetings with local officials and community leaders, defenders should raise the issue with everyone and anyone who will listen. Providing qualified counsel in minor cases can really make a difference and bring balance to the system. Defenders also need to persuade others that there could be changes that are not financially detrimental. “We need to build coalitions that work together to decriminalize, stop putting people on probation, and create diversion programs.”11

Fairness + compassion = lessons to live by

Defenders and others working in the criminal justice system recognize that life is not fair. In the end, it is the job of a defense lawyer to ensure that no one in the courtroom, or involved in the criminal justice process, “surrender[s] to the fact that life isn’t fair.” As defense lawyers, we must hold the government to its burden of proof, bolster the presumption of innocence, and bring dignity to our clients and the process. In this spirit of compassion, let us take to heart Gideon, Argersinger and now Shelton’s wisdom by “sweating the small stuff.”

Cait Clarke is Director, National Defender Leadership Institute of the National Legal Aid & Defender Association (NLADA), Washington, DC. (202) 452-0620 E-mail: c.clarke@nlada.org

Notes
1. Richard Carlson, Don’t Sweat the Small Stuff…and it’s all small stuff (Hyperion, NY 1997) at 47.
2. Id. at 48.
3. Gideon v. Wainwright, 372 U.S. 335 (1963).
4. Alabama v. Shelton, 535 U.S.122 S.Ct. 1764 (2002).
5. Argersinger v. Hamlin, 407 U.S. 25 (1972).
6. Correspondence between Edward Monahan, Deputy Public Advocate with the Kentucky Department of Public Advocacy and Cait Clarke, NDLI director, on Oct. 15, 2002.
7. Interview with Robert Boruchowitz by Cait Clarke, October 16, 2002.
8. At the Defending Immigrants Partnership of the NLADA, Lory Rosenberg is working on this issue and other ways that the Shelton decision impacts representation strategies in immigration cases involving prior misdemeanor convictions with suspended sentences. For more information contact l.Rosenberg@nlada.org.
9. The ABA’s Criminal Justice Section Council recently approved its Proposed ABA Standards for Criminal Justice (Third Edition) Chapter 19: Collateral Sanctions and Administrative Disqualification of Convicted Persons (February 19, 2002). These Criminal Justice Section standards will be presented for approval before the ABA House of Delegates in February 2003.
10. Correspondence, Edward Monahan with Cait Clarke, October 15, 2002. See Mark Moore, Creating Public Value, Strategic Management in Government (Harvard University Press, Cambridge, MA 1995).
11. Interview with Robert Boruchowitz by Cait Clarke, October 16, 2002.


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