No Lawyer, No Jail

In its landmark Gideon decision of 1963, the Supreme Court proclaimed that any indigent person accused of a felony has a right to free counsel. Two years later, the court had a chance to extend this right to people accused of misdemeanors, but for unspecified reasons it chose to pass up the case. If the Warren Court feared to tread such ground, could the more cautious Burger Court be expected to rush in? Last week it did just that--unanimously. From now on, said Justice Douglas, "no person may be imprisoned for any offense unless he was represented by counsel at his trial."

The impact will be far greater than that of the Gideon decision. Only 338,000 persons were charged with felonies during one recent year cited by the court. In contrast, said Douglas, "it is estimated that there are annually between 4,000,000 and 5,000,000 court cases involving misdemeanors," not counting traffic infractions. Misdemeanors vary from state to state, ranging from spitting on the sidewalk to public drunkenness to carrying a concealed weapon --the crime for which a Florida indigent named Jon Richard Argersinger was convicted (it was his trial without counsel that led to the court ruling). Some authorities believe that as many as half of such offenders are indigents, though not all of them will require lawyers. The right to counsel can be waived, or, as Douglas observed, a judge can decide before the trial that he will not impose a prison sentence, thus avoiding the need to assign a lawyer. In addition, a non-indigent who chooses not to pay for a lawyer need not be assigned one.*

Even with such a winnowing, however, the decision means that large numbers of additional attorneys will now be needed to defend indigents. Where will all the lawyers come from? Douglas noted that "there are 18,000 new admissions to the bar each year." In a separate opinion, Justices Brennan, Douglas and Stewart suggested that law school students might assist indigent defendants under the supervision of a law professor or a practicing attorney.

These proposals ignored the reality --that relatively few lawyers go into private criminal practice, and that the modest fees paid for the defense of indigents are not likely to attract many newcomers. States like New York, one of 19 that already provide lawyers for most misdemeanor defendants, have had to expand their public defender services. One approach that may now spread is the practice of the Washington, D.C., bar, which last year adopted a rule calling on every member under 60 and not a Government employee to take his turn representing indigent defendants. The lawyers get hourly fees of $20 to $30, up to a maximum of $400, in misdemeanor cases. So far the plan has had broad cooperation.

Justice Douglas was not unaware of the problems that the ruling presented, but he said the dislocations are necessary: "We do not sit as an ombudsman to direct state courts how to manage their affairs, but only to make clear the federal constitutional requirement." Justices Powell and Rehnquist felt that the rule should be applied only when "fundamental fairness" requires a lawyer, as they agreed it did in the Argersinger case. But Douglas insisted that a lawyer was a "fundamental right, where an accused is deprived of liberty." Chief Justice Burger concurred with some hopeful words. Noting that the American Bar Association had five years ago endorsed a similar rule, Burger said that the decision "may well add large new burdens on a profession already overtaxed, but the dynamics of the profession have a way of rising to the burdens placed on it."

* Douglas also observed in a footnote that the floods of misdemeanor cases might be reduced considerably if, as many experts have recommended, officials stopped prosecuting perpetrators of so-called victimless crimes such as drunkenness, narcotics addiction and vagrancy.

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