SC Class Action ACLU Lawsuit Over Right to Counsel Continues

Last year, I wrote about the National Association of Criminal Defense Lawyer’s (NACDL) report that highlighted the denial of counsel to indigent defendants in South Carolina and other states, and a class action lawsuit filed by the ACLU against the City of Beaufort and the Town of Bluffton for systematic denial of the right to counsel for people charged in their municipal courts.

What happened to the lawsuit?

Are SC’s municipal and magistrate courts making changes to comply with the constitutional requirement that they provide counsel to indigent defendants?

NACDL Report Found Systemic Constitutional Violations

The NACDL report found that:

  • Throughout the country, millions of defendants are denied the right to counsel every year;
  • The denial of counsel disproportionately affects non-whites; and
  • When public defenders are provided, crushing workloads and a lack of resources make it impossible for them to provide effective assistance.

Why are SC courts denying the right to counsel to indigent defendants?

Resources are allocated to law enforcement and prosecution, but some municipalities refuse to spend money on public defense because they don’t understand the constitutional requirement, or because they just don’t care.

Former Chief Justice Toal famously announced, years ago, that she disagreed with the U.S. Supreme Court’s decision in Alabama v. Shelton and that she had been instructing magistrates not to comply with it:

Alabama v. Shelton [is] one of the more misguided decisions of the United States Supreme Court, I must say. If we adhered to it in South Carolina we would have the right to counsel probably … by dragooning lawyers out of their law offices to take these cases in every magistrate’s court in South Carolina, and I have simply told my magistrates that we just don’t have the resources to do that. So I will tell you straight up we [are] not adhering to Alabama v. Shelton in every situation.

The current chief justice on our supreme court, on the other hand, issued a memo last year instructing magistrates and municipal court judges to either appoint counsel or have defendants waive their right to counsel on the record in cases where a defendant would be sentenced to jail time.

Are SC’s magistrate and municipal court judges complying?

ACLU Files Lawsuit Against SC Municipalities

Last year, the ACLU filed a federal class-action lawsuit against two SC towns, alleging that:

  • SC municipalities do not provide attorneys to indigent defendants;
  • They don’t even inform defendants of their right to counsel or provide an opportunity for defendants to apply for counsel;
  • The municipalities refuse to fund public defense in their courts;
  • City judges refuse to hear evidence from some defendants;
  • City judges allow police acting as prosecutors to violate the rules of evidence; and
  • Judges sometimes ridicule defendants, making fun of their efforts to defend themselves.

The lawsuit details the alleged abuses, including the stories of three named plaintiffs who were incarcerated without the benefit of a defense lawyer, and the effect that the incarceration had on their lives and health:

Upon information and belief, the majority of the 212 municipalities in South Carolina deprive indigent defendants of counsel in municipal courts, including the City of Beaufort and the Town of Bluffton. Despite the total absence of public defenders in their municipal courts, these cities and towns continue to prosecute, convict, and impose jail sentences on uncounseled defendants. It is the policy, practice, and custom of Defendants City of Beaufort and Town of Bluffton to exclude indigent defense from municipal courts. Doing so is a direct and proximate cause of Plaintiffs’ and class members’ unlawful incarceratory sentences and consequent injury. Such consequences include separating parents and children, harming physical and emotional health, and adversely affecting housing, employment, child custody, and immigration status.

Is There a Right to Counsel in the Municipal or Magistrate Court?

The United States Constitution guarantees the right to the effective assistance of counsel – if a defendant can’t afford an attorney, the state (or county, or municipality) must provide one for them.

The United States Supreme Court has repeatedly held that indigent defendants have the right to counsel, even in small misdemeanor cases, if they are sentenced to jail:

Argersinger v. Hamlin, 407 U.S. 25 (1972) held that, absent 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 trial.

Scott v. Illinois, 440 U.S. 367 (1979) again held that the Sixth and Fourteenth Amendments to the United States Constitution require 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.

Alabama v. Shelton, 535 U.S. 654 (2002) held that, even if a defendant receives a suspended sentence, they have a constitutional right to counsel.

Is There a Right to Counsel if You Don’t Go to Jail?

The U.S. Supreme Court has held that, if you are charged with a minor offense and do not go to jail, you do not have a right to counsel.

But, how do you know if a defendant is going to jail? I mean, unless there is a mandatory minimum sentence for the offense, is the judge going to decide that jail time is appropriate, or that jail time is not appropriate before the case is tried?

What often happens is the court will give a defendant a fine in lieu of jail time – that still results in a jail sentence, because, when the defendant (who is indigent, remember?) can’t pay the fine, the court will issue a bench warrant and… put them in jail.

How else are they going to collect money from someone who can’t afford to pay their rent?

What if You Get PTI?

Okay, okay. But, if you get pre-trial diversion in SC you don’t go to jail, and your case is dismissed. Surely those people don’t need a lawyer?

First, do you really believe that a person should be forced to do community service, pay fees, and submit to reporting and drug testing requirements if they are not guilty? And, believe it or not, many people charged in the municipal courts are not guilty

Second, what happens if they fail out of PTI? That is exactly what happened with one of the named plaintiffs in the lawsuit – he agreed to PTI, paid the fees, completed a prison tour that was one of the requirements but did not complete the community service requirements. He attempted to reschedule his community service but was sent back to court instead.

PTI is not an admission of guilt and is not a guilty plea.

When he appeared in front of the judge, still without an attorney, the court sentenced him to jail time.

What if You Plead Guilty?

Are you entitled to an attorney for a guilty plea?

You are entitled to effective assistance of counsel at every critical stage of the proceedings against you – especially prior to accepting a plea offer and pleading guilty.

Another of the named plaintiffs in the lawsuit pled guilty in the Beaufort Municipal Court – he was not advised of his right to counsel, did not waive his right to counsel, and counsel was not appointed. The court sentenced him to 50 days in jail, including a consecutive sentence for speeding less than 10 mph – a charge that doesn’t carry jail time.

Are the Cities Fighting the Lawsuit?

The law is clear. Surely the cities named in the lawsuit are working fast to make it right, to compensate the plaintiffs, and to ensure they will no longer deny counsel to indigent defendants, right?

In May, the federal district court issued an order denying the city’s motion to dismiss the lawsuit, noting that 1) the Constitution requires the cities to appoint counsel; 2) SC law requires the cities to appoint counsel; and 3) the cities’ failure to provide counsel is actionable under federal law…

Every SC town and city is not refusing to comply – since the filing of the lawsuit against Beaufort and Bluffton, other towns and cities have begun implementing public defender systems in their municipalities, either by contract with individual attorneys or with the county’s public defender office.

Including the town of Batesburg-Leesville, where I am now representing indigent defendants who are charged with crimes in the municipal court.

What Do You if You Are Charged with a Crime in Municipal Court in SC?

Get a defense lawyer – even minor criminal offenses will have serious consequences that may follow you for the rest of your life.

If you absolutely cannot find the money to retain a private criminal defense lawyer, tell the court that you are indigent and that you need the court to appoint counsel. Tell them over and over, at each court appearance in your case.

If they give you the opportunity, apply for a public defender. If you are denied the opportunity, make a record by asking for counsel and not waiving your right to counsel, and then find an attorney willing to appeal the case for you.

Criminal Defense Lawyer in Columbia, Lexington, and Myrtle Beach, SC

Lacey Thompson is a criminal defense attorney in private practice – while the Thompson Defense Firm does not handle public defender cases, we believe that the right to counsel is sacred and necessary in SC courtrooms where injustices happen every day.

If you can retain counsel, we can help. Call now at 843-444-6122 or send an email to talk with a defense lawyer today.

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