In the comments section of Bobby Frederick’s recent post over at South Carolina Criminal Defense Blog about the increased dollar value for property crimes contained in the amending provisions of S1154, we got into a discussion about S1154′s expansion of the jurisdiction of magistrate and municipal courts that bears repeating here in more detail. Several provisions in the Act authorize magistrates to hear criminal cases that, despite being categorized as misdemeanors, carry sentences of up to three years. For example, the amended statute for forgery now provides:
If the forgery does not involve a dollar amount, the person is guilty of a misdemeanor under the jurisdiction of the magistrates or municipal court, notwithstanding the provisions of Sections 22-3-540, 22-3-545, 22-3-550, and 14-25-65, and, upon conviction, must be fined in the discretion of the court or imprisoned not more than three years, or both.
Allowing magistrates, who in South Carolina are not required to have a law degree, to deprive citizens of their liberty for 30 or 90 day sentences is considered to be an imperfect necessity, but to bestow magistrates with the ability to incarcerate a person for three years raises more serious concern. While this necessity may be debatable, the constitutionality of our state’s failure to promptly appoint counsel to defend those tried in magistrate court is not. To understand the issue, it is necessary to examine a line of Supreme Court cases beginning with Argersinger v. Hamlin, 407 U.S. 25 (1972), and continuing most recently with Rothgery v. Gillespie County, 554 U.S. ___ (2008).
In the aftermath of the Supreme Court’s landmark decision in Gideon v. Wainwright, 372 U.S. 335 (1963), just how broadly the newly upgraded Sixth Amendment right to counsel should be applied was up in the air. The Court drew the line at offenses for which “actual imprisonment” is imposed in Argersinger, holding:
[A]bsent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial. . . . The run of misdemeanors will not be affected by today’s ruling. But in those that end up in the actual deprivation of a person’s liberty, the accused will receive the benefit of ‘the guiding hand of counsel’ so necessary when one’s liberty is in jeopardy.
The Court reaffirmed this holding in Scott v. Illinois, 440 U.S. 367 (1979), a case in which the defendant, though facing a possible sentence of up to one year, was only fined $500. The Court held that the mere possibility of imprisonment was not enough to trigger the attachment of the right to counsel:
We believe that the central premise of Argersinger—that actual imprisonment is a penalty different in kind from fines or the mere threat of imprisonment—is eminently sound and warrants adoption of actual imprisonment as the line defining the constitutional right to appointment of counsel. . . . We therefore hold that the Sixth and Fourteenth Amendments to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.
The line drawn at “actual imprisonment” was tested most recently in Alabama v. Shelton, 535 U.S. 654 (2002). In that case, the defendant was sentenced to thirty days suspended on two years probation, but he was not represented by counsel at his trial. Importantly, the defendant in that case was repeatedly warned by the trial judge about the dangers of defending himself pro se. However, critical to the Court’s holding—and to the analysis of the right in magistrate court—is that the trial judge at no time offered him assistance of counsel at the state’s expense, but it nevertheless imposed a suspended sentence that, if activated, would result in actual imprisonment. Thus the Court held:
Alabama concedes that activation of a suspended sentence results in the imprisonment of an uncounseled defendant “for a term that relates to the original offense” and therefore “crosses the line of ‘actual imprisonment’” established in Argersinger and Scott. Shelton cannot be imprisoned, Alabama thus acknowledges, “unless the State has afforded him the right to assistance of appointed counsel in his defense.” . . . We confine our review to the ruling the Alabama Supreme Court made in the case as presented to it: “[A] defendant who receives a suspended or probated sentence to imprisonment has a constitutional right to counsel.”
Which brings us, finally, to the Court’s most recent analysis of the Sixth Amendment right in Rothgery. An analysis of Rothgery must begin by pointing out that nothing in that case establishes a requirement for the actual appointment and presence of counsel in the absence of a post-attachment critical stage once adversary judicial proceedings have begun. The only issue addressed by the Court in Rothgery is when the right formally attaches. The brief facts of that case are that an arresting officer filed a complaint with a magistrate judge that accused the defendant of committing a particular crime, which prompted the magistrate to take legal action in response by setting the terms of bail and ordering the defendant locked up. The Court found this sufficient to trigger the attachment of the right to counsel and held:
Attachment occurs when the government has used the judicial machinery to signal a commitment to prosecute as spelled out in Brewer and Jackson. Once attachment occurs, the accused at least is entitled to the presence of appointed counsel during any “critical stage” of the postattachment proceedings; what makes a stage critical is what shows the need for counsel’s presence. Thus, counsel must be appointed within a reasonable time after attachment to allow for adequate representation at any critical stage before trial, as well as at trial itself. . . . [A] criminal defendant’s initial appearance before a judicial officer, where he learns the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel.
So, to summarize, the Sixth Amendment right to counsel attaches when a person is accused of a crime and subsequently has restrictions imposed on his liberty (e.g., when a defendant in magistrate court is charged with a misdemeanor and can’t make bail), and a person cannot be sentenced to a term of actual imprisonment unless the State provides the accused with an attorney to defend him (e.g., the indigent charged with a jailable misdemeanor cannot be sentenced to, say, 30 days time served without being offered appointed counsel). This is the Sixth Amendment right to counsel that the Supreme Court has delineated, and South Carolina does not recognize it.
The problem has been pointed out elsewhere, but it can no longer be ignored in light of the exacerbating provisions of S1154. Indeed, Steve Henry, an attorney in Greenville, has been working to combat the problem since 2002. He won a major victory last year in which all five of the Thirteenth Circuit’s judges signed a standing order mandating that each defendant in magistrate court who cannot post bond must not only be generally informed of his right to counsel—the accused must be specifically asked prior to detention if he wants the assistance of appointed counsel. If so, the magistrate judge must immediately fill out the appropriate paperwork, and the defendant must be screened for eligibility for appointed counsel within 48 hours (with appointment to follow immediately after screening, if eligible). Thanks to Steve Henry’s efforts and the judges of the Thirteenth Circuit’s actions, the Sixth Amendment right to counsel is being upheld in the magistrate courts of one corner of our state. But the last time I checked, the Constitution applies everywhere else, too. It’s time for South Carolina to recognize the right to counsel for indigents whose liberty is restricted in the most serious sense of what those words mean—actual imprisonment—for the failure to post bond in magistrate court.