Minor Crimes, Massive Waste The Terrible Toll of America’s Broken Misdemeanor Courts NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS April 2009 Supported in part by grants from the Open Society Institute and the Ford Foundation. COPYRIGHT © NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS This report is subject to a Creative Commons Attribution-Noncommercial-No Derivative Work license (see http://www.creativecommons.org ). It may be reproduced, provided that no charge is imposed, and the National Association of Criminal Defense Lawyers is ac - knowledged as the original publisher and the copyright holder. For any other form of re - production, please contact NACDL for permission. NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS 1660 L Street NW, 12th Floor Washington, DC 20036 Phone: 202-872-8600; Fax: 202-872-8690 Minor Crimes, Massive Waste The Terrible Toll of America’s Broken Misdemeanor Courts By Robert C. Boruchowitz Malia N. Brink Maureen Dimino JOHN WESLEY HALL EDWARD A. M ALLETT President, NACDL President, FCJ Little Rock, AR Houston, TX NORMAN L. R EIMER KYLE O’D OWD Executive Director, NACDL Associate Executive Director Washington, DC For Policy, NACDL Washington, DC NACDL Indigent Defense Committee Rick Jones William Wolf Co-Chair Co-Chair New York, NY Chicago, IL Anthony Cotton E. Gerry Morris Geneva Vanderhorst Vice-Chair Immediate Past-Chair Vice-Chair Waukesha, WI Austin, TX Washington, DC TABLE OF CONTENTS ABOUT THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS . 4 ABOUT THE FOUNDATION FOR CRIMINAL JUSTICE . 5 ACKNOWLEDGEMENTS . 6 EXECUTIVE SUMMARY . 7 INTRODUCTION . 10 Methodology . 10 The Misdemeanor Courts . 11 The Volume of Misdemeanor Offenses . 11 Rights of Defendants in Misdemeanor Cases . 11 Right to Counsel in Misdemeanor Cases . 11 Why Are Lawyers Needed in Misdemeanor Cases? . 12 Consequences of a Misdemeanor Conviction . 12 PROBLEMS IN MISDEMEANOR COURTS . 14 Absence of Counsel . 14 Uninformed Waiver of Counsel . 15 Eligibility Limitations for Counsel . 16 Conferring Directly with Prosecutors . 16 Recommendations — Absence of Counsel . 17 Deterrents to Asking for Counsel . 18 Delay . 18 Application Fees . 19 Recommendations — Deterrents to Asking for Counsel . 19 Misdemeanor Caseloads . 20 The Meaning of the Caseload Numbers . 22 Excessive Caseloads Put Lawyers in Jeopardy . 22 Recommendations — Excessive Caseloads . 24 Why Are Misdemeanor Caseloads So High? . 25 Overcriminalization . 25 Misdemeanor Indigent Defenders Take Brunt of Budget Shortages . 26 Minor Crimes, Massive Waste Recommendations — Causes of Excessive Caseloads . 27 Misdemeanor Defense in Practice . 30 Meet and Plead . 31 Denial of Bond/Inability to Make Bail and the Pressure to Plead . 32 Prosecutorial Pressure to Plead . 33 Impact of Increased Collateral Consequences on Misdemeanor Caseloads . 34 Early Disposition Projects . 34 3 Effect of Excessive Caseloads on the Clients . 35 Recommendations — Misdemeanor Defense in Practice . 36 Misdemeanor Defenders Lack Access to Support Services . 38 Recommendations — Lack of Support Services . 39 Inexperienced Counsel in Misdemeanor Courts . 39 Lack of Training . 39 Lack of Supervision . 40 Recommendations — Inexperienced Counsel in Misdemeanor Courts . 40 Lack of Standards . 41 Recommendations — Lack of Standards . 41 Inadequate Compensation for Defenders in Misdemeanor Courts . 42 Recommendation — Inadequate Compensation . 43 Judicial Conduct in Misdemeanor Courtrooms . 44 Disparate Treatment of Indigent Defendants . 44 Judges Face Discipline for Not Honoring Right to Counsel . 45 Recommendations — Judicial Conduct in Misdemeanor Cases . 45 Lawyer Burnout in Misdemeanor Courts . 46 Recommendation — Lawyer Burnout . 46 Disproportionate Effect on Minority Communities . 47 Recommendations — Disproportionate Impact on Minority Communities . 48 CONCLUSION . 48 The Terrible Toll of America’s Broken Misdemeanor Courts Table of Contents ABOUT THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS he National Association of Criminal Defense Lawyers (NACDL) is the preemi - nent organization in the United States advancing the goal of the criminal defense bar to ensure justice and due process for persons charged with a crime or wrong - Tdoing. NACDL’s core mission is to: Ensure justice and due process for persons accused of crime … Foster the integrity, independence and expertise of the criminal defense pro - 4 fession … Promote the proper and fair administration of criminal justice. Founded in 1958, NACDL has a rich history of promoting education and reform through steadfast support of America’s criminal defense bar, amicus advocacy, and myriad proj - ects designed to safeguard due process rights and promote a rational and humane crim - inal justice system. NACDL’s 12,000 direct members — and more that 90 state, local and international affiliates with an additional 40,000 members — include private crim - inal defense lawyers, public defenders, active U.S. military defense counsel, and law professors committed to preserving fairness in America’s criminal justice system. Rep - resenting thousands of criminal defense attorneys who know firsthand the inadequacies of the current system, NACDL is recognized domestically and internationally for its ex - pertise on criminal justice policies and best practices. The research and publication of this report was made possible through support of indi - vidual donors and foundations to the Foundation for Criminal Justice. This report would not have been possible without the specific support of the Ford Foundation and the Open Society Institute. For more information contact: THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS 1660 L Street NW, 12th Floor Washington, DC 20036 202-872-8600 This publication is available online at www.nacdl.org/misdemeanor Minor Crimes, Massive Waste ABOUT THE FOUNDATION FOR CRIMINAL JUSTICE he Foundation for Criminal Justice (FCJ) is organized to preserve and pro - mote the core values of America ’s justice system guaranteed by the Consti - tution — among them due process, freedom from unreasonable search and Tseizure, fair sentencing, and assistance of effective counsel. The FCJ pursues this goal by seeking grants and supporting programs to educate the public and the legal profession to the role of these rights and values in a free society and assist in their 5 preservation throughout the United States and abroad. 5 The Foundation is incorporated in the District of Columbia as a non-profit, 501(c)(3) corporation. All contributions to the Foundation are tax-deductible. The affairs of the Foundation are managed by a Board of Trustees that possesses and exercises all powers granted to the Foundation under the DC Non-Profit Foundation Act, the Foundation ’s own Articles of Incorporation, and its Bylaws. For more information contact: FOUNDATION FOR CRIMINAL JUSTICE 1660 L Street NW, 12th Floor Washington, DC 20036 202-872-8600 The Terrible Toll of America’s Broken Misdemeanor Courts ACKNOWLEDGEMENTS he authors wish to thank the Board of Directors of the National Association of Criminal Defense Lawyers and the Board of Trustees for the Foundation for TCriminal Justice for their support of this project. The research and drafting of this report was a collaborative effort between NACDL and 6 Professor Robert C. Boruchowitz of the Seattle University School of Law. Professor Boruchowitz served as lead researcher on the project. In addition to teaching in the Youth Advocacy Clinic, Professor Boruchowitz is the Director of The Defender Initia - tive, a project that works to document problems in public defense systems and to ad - vance efforts to improve public defense representation. The authors express their thanks to all those who assisted in the research of this report. E. Gerry Morris, Suzanne Spencer, Angela Ramage-Wolf, Shelley Stark, and Mark Rankin assisted with site visits in Texas, Illinois, Pennsylvania, and Florida. Lauren McLane and Mary Lyons, students at Seattle University School of Law, provided re - search and site visit assistance to Professor Boruchowitz. William Wolf provided guid - ance and support to NACDL staff. We also thank Stephen McConnell, Jeffrey Daman and their colleagues at Dechert LLP, Marvin Schechter, and Vic Walczak of the ACLU of Pennsylvania, all of whom con - ducted early site visit work in Pennsylvania that, in large part, led to the development of this project. We thank the Open Society Institute for supporting of the project, including hosting the conference on misdemeanor courts in New York City. We also thank the Ford Founda - tion for its support. We thank the Dean of Seattle University School of Law, Kellye Testy, as well as the Director of Continuing Legal Education, Jim Rosenfeld, and his col - leagues, Julie McClure and Rebecca Parker, who graciously hosted the conference in Seattle. We also express our appreciation to Seattle University Professor Deirdre Bowen, who reviewed our survey and recommended changes, Robert Spangenberg and David New - house of The Spangenberg Group, who offered information and advice, as well as par - ticipated in the conferences, and David Carroll of the National Legal Aid & Defender Association, with whom the authors consulted on a number of aspects of this report. Finally, the authors offer their appreciation to the participants at the site visit locations across the country for their cooperation and candidness, as well as the numerous de - fenders who responded to our survey and follow-up questions. Minor Crimes, Massive Waste EXECUTIVE SUMMARY he explosive