After four years with the Army in Iraq, Jake Christie would self-medicate his PTSD with the bottle. It didn’t usually end well. One night in 2014, four years after he was honorably discharged, he got into a fight with another regular at a local watering hole near his home in Port Royal, South Carolina. The owner kicked them out and called the police, who found Christie in the parking lot. They told him to take a cab home and not come back. He obliged but remembered halfway there that he had left his messenger bag with his laptop and community college textbooks in his car, back in the parking lot. He told the cab driver to turn around.
Christie heard a gruff voice as he reached into the backseat of his car to grab his bag: “You weren’t supposed to come back.” It was the police officer from before. He told Christie he was headed to jail, but Christie protested, saying he had no intention of returning to the bar or driving. “I’m not going to jail,” he told the cop. The officer pushed him against the car and spun him around to grab his wrists and cuff him. Perhaps as a symptom of his PTSD—“Something went wonky,” he says—Christie flipped out when he felt the officer’s hands on him, and both went to the ground. The scuffle ended when the officer hit Christie twice with his Taser. Christie was charged with trespassing and resisting arrest. (Christie’s name has been changed out of respect for his fear of retaliation by local police for speaking publicly.)
Several weeks later, he found himself in front of Justice James A. Grimsley III at Port Royal Municipal Court. Down near the water in Beaufort County, the local court is tucked inside the city’s redbrick Town Hall.
Together, the charges carried a sentence of up to 60 days in jail, if found guilty, or $700 in fines. “I told them I wanted a lawyer,” Christie, now 40, said. “But the judge said no—if you request a jury trial, you either have to [represent] yourself or pay for a lawyer.” Christie was barely getting by on disability checks of $420 a month from the Department of Veterans Affairs; his PTSD made work impossible. His income, which was below the federal poverty level, made him eligible for state-appointed counsel. Paying for a lawyer was out of the question, but the judge, unmoved, denied him his constitutional right to an attorney. (Grimsley, a local attorney, did not respond to repeated requests for comment.)
The Supreme Court’s Sixth Amendment decisions regarding misdemeanor defendants are violated thousands of times every day. No Supreme Court decisions in our history have been violated so widely, so frequently, and for so long.
Sen. Charles Grassley, R-Iowa
“I just had this sinking feeling when the judge said no,” Christie told TakePart. “The thought of being away from my family, my daughter, in jail…. I just knew it would kill my mom.”
A request to order Grimsley to provide Christie with counsel went unresolved, but he was offered a plea deal and ended up paying a fine. Christie has since quit drinking, but apart from trips to his psychiatrist at the VA, he doesn’t leave home much these days. It’s not just the sensitivity to crowds and loud noises that keeps him in the house he shares with his mother and daughter: Christie is afraid of getting another misdemeanor ticket that could land him before a judge at the local municipal court.
“I figure it’s hard for them to hem me up if I’m at home,” Christie said. “I just don’t want to put myself or my family through any of that anymore.”
Like many states across the country, South Carolina tasks municipal courts with handling low-level offenses—from traffic tickets to more serious criminal misdemeanor charges, such as drug possession, minor assault, and theft. As in many of these courts nationwide, indigent defendants in South Carolina’s 212 municipal courts routinely plead guilty to minor charges without understanding—sometimes without even being informed of—their right to legal counsel, free of charge. Christie and many others have been denied counsel even though their liberty was at stake—in spite of the U.S. Supreme Court’s determination in Gideon v. Wainwright in 1963 that the Sixth Amendment to the Constitution guarantees criminal defendants the right to professional counsel regardless of their ability to pay for it.
While harsher crimes that carry felony sentences make the news, citizens are most likely to come into contact with the criminal justice system through misdemeanor courts, also called courts of limited jurisdiction. According to the National Center for State Courts, there are 14,000 to 16,000 such courts across 46 states. In 2009, these courts handled 70 million cases.
Data on these courts is tracked inconsistently or not at all, making it hard to know how often the rights of poor defendants are being violated.
“Indigent defense services are so bifurcated and balkanized in many states that it’s really difficult to keep track,” David Carroll, director of the Sixth Amendment Center, said. “To try and get information on all of these municipalities, let alone within all those counties, is just a herculean effort that no one is able to do.”
Colette Tvedt at the National Association of Criminal Defense Lawyers is endeavoring to find out. Tvedt has spent the last 12 months visiting courtrooms around the country to observe proceedings. Part of the challenge of determining the scope of the problem is that courts’ operations with respect to free legal representation for indigent defendants vary widely between states, even between counties; while one might have a vibrant public defender system, a county next door might be vastly underfunded.
After working as a public defender in Massachusetts and Washington for more than 25 years, Tvedt joined NACDL to tackle systemic problems. “I really thought I knew public defense, and then I got to this,” Tvedt said. “The underbelly of what’s happening in the U.S. is very different—this is a crisis of indigent defense.”
In May, Sen. Chuck Grassley chaired a Senate Judiciary Committee hearing on the right to counsel for indigent defendants charged with misdemeanors. Grassley, who has openly opposed sentencing reform and espoused tough-on-crime policies, is an unlikely advocate for the rights of poor defendants. But he is one of a growing number of conservative lawmakers whose views have evolved and who now recognize that the country’s incarcerated population has ballooned to an unreasonable and unsustainable level. Municipal courts are one of the primary gateways to this overburdened criminal justice system.
“The Supreme Court’s Sixth Amendment decisions regarding misdemeanor defendants are violated thousands of times every day,” Grassley said. “No Supreme Court decisions in our history have been violated so widely, so frequently, and for so long.”
A police officer ducked her head out from behind two heavy oak doors in Simpsonville City Hall, which is home to Simpsonville, South Carolina’s municipal court. She looked tired. “Is anyone out here requesting a jury trial?” she asked. A group of accused offenders was waiting outside the courtroom for their appearance before the judge. Many glanced at one another to see if anyone would raise a hand. None did. Outside, a town seal adorning a doormat at the front door read, “A past to remember, a future to build.” Around the corner from the courthouse, a sign in front of the Simpsonville Gun & Pawn shop asked, “Gun control for us, nukes for Iran?”
As offender after offender went through the motions of pleading guilty and then departed, the police officer ushered those waiting one by one through a metal detector and directed each to a seat in the courtroom. A middle-aged man sheepishly set six rolls of change on the table before going through the metal detector; he had brought them to pay his fine.
Assistant Judge Leslie Sharff Sr. heard more than a hundred cases that day, quickly asking defendants if they understood they had a right to an attorney before asking if they understood they were giving up that right. Most swiftly answered yes, with the apparent ease of having been through it before. Others hesitated, seeming not to understand, but also reluctant to slow the proceedings.
When two young codefendants approached the bench to address a shoplifting charge, Sharff asked the women if they wanted PTI. “What does that mean?” one asked. “It’s pretrial intervention,” Sharff replied. Confused, one of them declined the offer and took the fine instead. Had a public defender been present to explain the option to her, she might have chosen differently: This kind of second-chance intervention, available to first-time offenders, allows defendants to enter a rehabilitation program, on completion of which the record of their offense is expunged.
These low-level courts handle cases that carry sentences of 30 days in jail or less. Multiple defendants left the Simpsonville courtroom that day with fines of $1,090 for shoplifting offenses. Tvedt has witnessed indigent defendants pleading guilty without lawyers and being assigned hefty fines in South Carolina, Louisiana, Indiana, and Mississippi. Some judges, including Sharff, are generous with assigning payment plans to defendants who can’t come up with the entire sum at once. Others, such as a judge observed in Landrum, South Carolina, stick to what’s known as a “pay or stay” policy.
“When [defendants] can’t pay the money, they’re sometimes taken directly into custody,” Tvedt said. In the municipal court of North Charleston, South Carolina, Tvedt observed as an elderly woman charged with theft of food from a Walmart repeatedly requested and was denied a public defender. Unable to pay her fine, she was handcuffed and taken to jail. Those who can’t afford fines are also generally unable to afford bail—a situation that was darkly manifested in the deaths of Kalief Browder in New York and Sandra Bland in Texas, among many others.
In states such as Missouri, New York, Pennsylvania, Arizona, and South Carolina, limited jurisdiction judges are not required to have a law degree or to pass the bar exam. Many have backgrounds in law enforcement. While public defenders are largely absent from these small courtrooms, some of which can be found in strip malls, police officers are almost always present. The officers often double as prosecutor and witness, appearing before the judge to describe the incident in which they wrote a ticket for or made the arrest of the defendant standing beside them.
The local non-lawyer judge assigned to handle minor civil and criminal infractions was imported to the U.S. by British colonialists, a holdover from King Edward III’s justice of the peace system. It was considered necessary in colonial days for a local official to adjudicate such matters because lawyers were few and far between and travel was difficult. “The problem was to settle disputes among neighbors and to prevent friction where possible,” wrote legal historian Chester H. Smith in 1927. “Few legal principles or rules had been worked out and there was little legislation either to guide or hamper the magistrate. Hence, he was probably as capable as anyone to administer justice according to his own judgment and common sense.”
Across the country, the anachronistic faith that a local citizen without legal training is qualified to administer justice has gone astray. While the offenses and fines may seem minor, defendants eager to return to their jobs and families often rush to plead guilty without understanding the ramifications. “Nationally, I find the biggest problem is that people are pressured so quickly to plead guilty,” Carroll said. “People just think, ‘I want to get out versus drawing this out.’ ”
The case load at these courts is such that the desire to hurry things along is palpable among judges and defendants alike—resulting in what some advocates call “assembly line justice.”
“Just because it’s a low-level offense, it doesn’t mean there aren’t consequences that flow from it,” said Hugh Ryan, deputy director and general counsel for the South Carolina Commission on Indigent Defense, which was established in 1993 to oversee indigent defense services in the state. “Maybe it’s just a fine, but in other instances it could involve jail time, and either way it’s a criminal record.”
Public defenders in South Carolina are not contractually required to represent indigent defendants in limited jurisdiction courts. Instead, the limited resources of their offices go to handling cases carrying heavier charges—often thousands of them a year—in general sessions and magistrate courts. Still, Ryan explained, the indigent defense commission has long made it clear to policy makers that if these local courts are going to exist, funding should be provided to all public defender's offices in the state to represent all defendants who appear in them.
“Most of these courts pay for a judge and prosecutors, but the one thing they’re leaving out is the one that’s constitutionally protected,” Ryan said.
Following his appearance before Justice Grimsley, Jake Christie filed two applications for a public defender; Grimsley denied both. (The public defender’s office serving Port Royal is not tasked with providing counsel to indigent defendants in the municipal court system.) In a panic, Christie started calling local organizations that might be able to help. Susan Dunn, legal director at ACLU of South Carolina, filed a petition on Christie’s behalf with the general sessions court, requesting that it order Grimsley to assign Christie a public defender. More than a year later, the court had not resolved his case. By then, Christie’s disability payments had increased, and he was no longer considered indigent. A police officer, a vet like Christie, called him on behalf of the court and offered a deal: It would drop the more serious charge of resisting arrest and let him pay the $200 trespassing fine. Eager to move on, Christie paid.
In late June, a proviso was added to the state budget for the first time that requires municipal courts to fund the representation of indigent defendants through county public defender’s offices. The law came after years of discussions between the Commission on Indigent Defense, various municipal associations, and state legislators.
The commission is sending public defenders to municipal courts around the state to find out how the proviso is being implemented. In spite of the state’s predominantly conservative legislature, Ryan says many conservative lawmakers have quietly begun to push for funding. “They don’t openly trumpet the public defenders,” Ryan said. “But they know it’s important. To move the dockets, you have to have some type of parity.”
In July, some courts still seemed unaware of their obligation to provide counsel for poor defendants. While some towns are complying, there is resistance. In Anderson, the town council debated on Aug. 3 whether to appropriate $4,547 for the Anderson County public defender’s office to represent the indigent in its municipal court. “This is another unfunded mandate,” complained Williamston Mayor Mack Durham, according to a report in the Independent Mail of Anderson. The town council approved the measure anyway.
Meanwhile, Tvedt and her team at the NACDL, as well as lawyers from the ACLU, are attuned to the new requirement and continue to observe courts throughout the state.
Though an inventory of counties nationwide is a major undertaking, Tvedt is optimistic about the bipartisan movement for criminal justice reform.
“I’m hopeful we’re at a moment where we can look at this and say, We’re better than this as a country,” Tvedt said. “Every community in this country is impacted by the criminalization of minor infractions, and these communities have to understand what their rights are.”
To Carroll, addressing the pervasive nationwide problem boils down to educating local stakeholders who simply don’t understand the importance of all defendants being professionally represented in court, or what they’re doing wrong.
“There’s no malice here—people think they’re doing it right,” Carroll said. “Time and time again the Supreme Court hands down a ruling on the right to counsel, but it doesn’t really change much on the ground. People interpret these rulings to their own culture. If the culture is to never provide counsel, as it is in so many places, that’s what happens.”