[Senate Hearing 114-900]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 114-900

                  PROTECTING THE CONSTITUTIONAL RIGHT
                    TO COUNSEL FOR INDIGENTS CHARGED
                           WITH MISDEMEANORS

=======================================================================

                                HEARING

                               BEFORE THE

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                    ONE HUNDRED FOURTEENTH CONGRESS

                             FIRST SESSION
                               __________

                              MAY 13, 2015
                               __________

                           Serial No. J-114-17
                               __________

         Printed for the use of the Committee on the Judiciary
         
         
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                        www.judiciary.senate.gov
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                               __________

                    U.S. GOVERNMENT PUBLISHING OFFICE
                    
52-846                     WASHINGTON : 2023   



                       COMMITTEE ON THE JUDICIARY

                  CHARLES E. GRASSLEY, Iowa, Chairman
ORRIN G. HATCH, Utah                 PATRICK J. LEAHY, Vermont, Ranking 
JEFF SESSIONS, Alabama                   Member
LINDSEY O. GRAHAM, South Carolina    DIANNE FEINSTEIN, California
JOHN CORNYN, Texas                   CHARLES E. SCHUMER, New York
MICHAEL S. LEE, Utah                 RICHARD J. DURBIN, Illinois
TED CRUZ, Texas                      SHELDON WHITEHOUSE, Rhode Island
JEFF FLAKE, Arizona                  AMY KLOBUCHAR, Minnesota
DAVID VITTER, Louisiana              AL FRANKEN, Minnesota
DAVID PERDUE, Georgia                CHRISTOPHER A. COONS, Delaware
THOM TILLIS, North Carolina          RICHARD BLUMENTHAL, Connecticut

                Kolan L. Davis, Majority Staff Director
                Kristine Lucius, Minority Staff Director

                            C O N T E N T S

                              ----------                              

                        MAY 13, 2015, 10:03 A.M.

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Grassley, Hon. Charles E., a U.S. Senator from the State of Iowa.     1
    prepared statement...........................................    75
Franken, Hon. Al, a U.S. Senator from the State of Minnesota.....     3
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont
    prepared statement...........................................    77

                          WITNESSES TESTIMONY

Witness List.....................................................    27
Boruchowitz, Professor Robert C..................................    10
    prepared statement...........................................    45
Cady, Honorable Mark S...........................................     5
    prepared statement...........................................    28
Fulton, Neil.....................................................     8
    prepared statement...........................................    42
Hashimoto, Professor Erica J.....................................    12
    prepared statement...........................................    61
Singleton, David A...............................................     7
    prepared statement...........................................    35

                               QUESTIONS

Questions submitted to Boruchowitz, Professor Robert C. by:
    Senator Grassley.............................................    85
Questions submitted to Cady, Honorable Mark S. and Singleton, 
  David A. by:
    Senator Grassley.............................................    79
Questions submitted to Cady, Honorable Mark S. by:
    Senator Grassley.............................................    79
Questions submitted to Fulton, Neil by:
    Senator Grassley.............................................    94
Questions submitted to Hashimoto, Professor Erica J. by:
    Senator Grassley.............................................   100
Questions submitted to Singleton, David A. by:
    Senator Grassley.............................................    79

                                ANSWERS

Responses of Boruchowitz, Professor Robert C. to questions 
  submitted by Senator Grassley..................................    85
Responses of Cady, Honorable Mark S. to questions submitted by 
  Senator Grassley and Senator Vitter............................    91
Responses of Fulton, Neil to questions submitted by Senator 
  Grassley.......................................................    94
Responses of Hashimoto, Professor Erica J. to questions submitted 
  by Senator Grassley............................................   100
Responses of Singleton, David A. to questions submitted by 
  Senator Grassley...............................................   107

                MISCELLANEOUS SUBMISSIONS FOR THE RECORD

    Internet Locations of Citation Documents.....................   111

Submitted by Senator Grassley's Office:

    NLADA American Council of Chief Defenders dated May 20, 2015.   112
    ACLU American Civil Liberties Union dated May 13, 2015.......   116
    Koch Industries Letter dated May 6, 2015.....................   122
    The Constitution Project dated May 12, 2015..................   124
    NLADA National Legal Aid & Defender Association dated May 13, 
      2015.......................................................   127
    SJC joint letter - misdemeanors hearing......................   133

Submitted by Senator Leahy's Office:

    Exhibit A--NAPD National Association for Public Defense--
      Reports from Members.......................................   135
    Exhibit B--NAPD National Association for Public Defense--
      Statement on Predatory Practices in Criminal Courts........   138
    Exhibit C--NAPD National Association for Public Defense--
      Workload Statement.........................................   150
    Exhibit D--Louisville Law Review Article.....................   154
    National Association for Public Defense--Letter to Chairman 
      Grassley and Senator Leahy.................................   164

 
                  PROTECTING THE CONSTITUTIONAL RIGHT
                   TO COUNSEL FOR INDIGENTS CHARGED
                           WITH MISDEMEANORS

                              ----------                              


                        WEDNESDAY, MAY 13, 2015

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 10:03 a.m., Room 
226, Dirksen Senate Office Building, Hon. Charles E. Grassley, 
Chairman of the Committee, presiding.
    Present: Senators Durbin, Klobuchar, Franken and Coons.

 OPENING STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR 
                     FROM THE STATE OF IOWA

    Chairman Grassley. The Minority members are on their way to 
the Committee meeting. I think I will start out with my opening 
statement. Before I give my opening statement, my friend, 
Senator Leahy, cannot be here today as Ranking Member of the 
full Committee and he has a statement that I am going to put in 
the record, that he has asked me to put in the record for 
himself. I have done that.
    [The prepared statement of Senator Leahy appears as a 
submission for the record]
    Chairman Grassley. I want to say thank you to all the 
people that are participating, as well as those in the 
audience.
    Today the Senate Judiciary Committee holds this hearing on 
indigent misdemeanor representation. According to the Sixth 
Amendment Center and certainly in my memory, this is the first 
time the Senate Judiciary Committee has ever held a hearing on 
this specific subject.
    The Sixth Amendment provides criminal defendants with 
assistance of counsel. For more than 50 years following the 
Gideon decision, it has been clear that it is necessary to give 
low income people accused of crime the right to a lawyer to 
help them navigate the system, preserve their rights, and make 
sure innocent people do not go to jail.
    Clarence Gideon himself, when retried with a lawyer 
representing him, was acquitted, and that landmark ruling was 
extended in 1972 to misdemeanor defendants for good reason. The 
overwhelming majority of people who face criminal charges are 
prosecuted for misdemeanors.
    In Iowa, for example, 80 percent of all criminal 
prosecutions are for misdemeanors, among the highest rate in 
the country. Some States have adhered to the Constitution. In 
Iowa, our district courts do an excellent job of providing 
counsel to misdemeanor defendants.
    I am pleased that our Chief Justice of the Iowa Supreme 
Court is with us today. Last month his court extended the right 
to counsel by not permitting un-counseled convictions to be 
used as sentencing enhancements in subsequent crimes.
    Un-counseled convictions must exist in Iowa, however, or 
the decision would not even be necessary. Many States are not 
providing counsel as our Constitution requires. I think it is 
quite a widespread problem.
    In reality, the Supreme Court's Sixth Amendment decisions 
regarding misdemeanor defendants are violated thousands of 
times. No Supreme Court decision in our history have been more 
violated so widely, so frequently, and for so long.
    Consider what is happening just in some of the States 
represented on this Committee. Defenders are not present at 
arraignment. A large number of misdemeanor defendants plead 
guilty without lawyers. Defendants who have been locked up 
pending their first appearance are told that they can plead 
guilty and be sentenced to time served, but if they choose to 
be represented by counsel, they will wait in jail until one is 
appointed. Problems exist on a smaller scale within our own 
Federal system, as we will hear.
    When misdemeanor defendants are not given counsel, no one 
can challenge the legality of a traffic stop or to make the 
prosecution prove every element of an offense beyond a 
reasonable doubt. Innocent people may be going to jail.
    In locations where lawyers are provided at every stage of 
the process, about 25 percent of all cases are dismissed. There 
are members of the Senate who want to reduce sentences for 
felons. At least those individuals have been proven beyond a 
doubt to have, for instance, sold large quantities of drugs 
that poison our children or bring violence to our streets.
    To really address sentencing reform, we should also be 
looking at the vast majority of crimes in the country, meaning 
misdemeanors, and the un-counseled prison sentences that punish 
them.
    These constitutional violations cause serious 
repercussions. People who are convicted of misdemeanors, 
whether they receive legal representation or not, may have 
problems obtaining a job for the rest of their lives. That 
hurts those individuals, it hurts the economy, it hurts all of 
us.
    Misdemeanor convictions give rise to other collateral 
consequences. Housing assistance and student loan eligibility 
might be compromised. Some misdemeanor convictions can lead to 
loss of gun ownership rights. Some misdemeanors, when 
repeatedly violated, become felonies.
    Yet, prior un-counseled misdemeanors should not count 
toward felonies and their consequences. Misdemeanor convictions 
can also make defendants ineligible for a Federal safety valve. 
That is a provision that allows first-time low-level drug 
offenders to avoid mandatory minimum sentences. In many 
instances, misdemeanor defendants are unaware of those 
consequences then, when they enter their guilty pleas.
    I do not think that the solution to the problem is another 
Federal grant program. According to a 2012 GAO report, there 
are already such--13 such programs and of the nine that can be 
used for indigent defense and for other purposes, States have 
not used the grants for counsel.
    Indigent representation is not a high priority. In fact, 
barely half of all defender offices even knew that these funds 
could be used for indigent defense.
    Perhaps we need a better Federal effort in coordinating and 
maybe even dispensing these funds, combined with transparency 
and accountability for why States are not spending available 
funds for indigent defense.
    One way to address the problem would be for States to 
reclassify some misdemeanors as civil offenses or eliminate 
prison sentences for various misdemeanors. Perhaps civil fines 
would be just as effective without making States pay for 
lawyers or causing collateral consequences.
    We will hear testimony today about divergent programs that 
take some offenses out of the criminal justice system. Again, 
there are Committee members who are concerned about over-
criminalization. This is a place to begin.
    States often make lawyers sit through CLE programs of 
dubious value. Perhaps it would render a better public service 
by requiring lawyers to provide assistance to indigent 
misdemeanor defendants instead.
    What is particularly troubling about these constitutional 
violations is who is committing them. It is our judicial 
system. The States and the State courts must adhere to the Bill 
of Rights. Respect for our courts, as well as the rule of law 
demands that.
    Widespread, intractable violations of the Sixth Amendment 
have existed for more than 40 years. Few prospects exist that 
the States will soon remedy those violations.
    State systems need to be reformed. We need to know what is 
happening. We pride ourselves on a legal system that provides 
equal justice for all. For that to be real, we must make sure 
that people without financial means receive representation.
    I would, at this point, ask unanimous consent to include in 
the record a letter from Mark V. Holden, Senior Vice President, 
General Counsel and Secretary, Koch Industries, in support of 
today's hearing.
    [The letter referred to as a submission for the record]
    Chairman Grassley. We also have 13 other letters to place 
in the record that I will just categorize as varying from 
across the political spectrum in support of this hearing and 
doing something with it.
    [The letters referred to as a submission for the record]
    Chairman Grassley. I call on my friend from Minnesota for 
any statement that you want to make, and thank you for coming.

 OPENING STATEMENT OF HON. AL FRANKEN, A U.S. SENATOR FROM THE 
                       STATE OF MINNESOTA

    Senator Franken. Thank you, Mr. Chairman, for calling this 
hearing on the Sixth Amendment right to counsel in misdemeanor 
cases.
    This is a very important issue and a bipartisan issue. 
Despite the fact that misdemeanors represent 70 to 80 percent 
of all criminal cases, misdemeanors have not been a significant 
part of the conversation surrounding criminal justice reform, 
and they should be.
    I am glad to see this issue come before the Judiciary 
Committee and I appreciate the opportunity to attend this 
hearing. It has been more than 50 years since the U.S. Supreme 
Court unanimously ruled in Gideon v. Wainwright, saying that 
defendants facing criminal charges have a right to counsel 
regardless of their ability to pay for legal representation.
    In that decision, Justice Black wrote that any person held 
in the court who is too poor to hire a lawyer cannot be assured 
a fair trial unless counsel is provided for him. He called that 
an, quote, ``obvious truth.''
    Yet, in State and local courts across this country, 
defendants in misdemeanor proceedings are still appearing 
before judges without an attorney because they are unable to 
afford one. States and localities staring down record 
misdemeanor backlogs and shrinking budgets are not providing 
those defendants with access to counsel despite their 
constitutional obligation to do so.
    As the Nation engages in difficult conversations about the 
effects of mass incarceration and the State of our criminal 
justice system, we are permitting scores of defendants from our 
most vulnerable communities to appear unrepresented in court.
    The stakes are high. Misdemeanors or so-called lesser 
offenses carry enormous and lasting consequences. Individuals 
convicted of misdemeanors do not just face crime and 
imprisonment. Long after they have served their sentences, 
misdemeanor offenders are denied job opportunities and career 
advancement. They are deemed ineligible for student loans and 
even housing.
    Despite the consequences and the costs those consequences 
impose on our communities and on our country, many of our 
citizens face these charges alone without assistance and with 
little chance of success.
    I look forward to hearing more from our witnesses about how 
we can confront this obvious truth and better meet our 
constitutional obligation to ensure that defendants receive a 
fair trial.
    Thank you again, Mr. Chairman.
    Chairman Grassley. Thank you, Senator Franken.
    I am going to introduce everybody before you testify and 
then we will move from Mr. Cady over to Ms. Hashimoto, in that 
way.
    I want to introduce a person that has testified before our 
Committee before, the Chief Justice since 2010, but a member of 
the Supreme Court of Iowa since 1998. He earned both his 
undergraduate and law degrees from Drake University. He has 
been a State judge since 1983.
    In 2013, he was elected to the Conference of Chief 
Justices' Board of Directors. Chief Justice Cady is also an 
adjunct faculty member at Buena Vista University.
    David Singleton is an Executive Director, Ohio Justice and 
Policy Center. OJPC provides free legal representation to 
prisoners and ex-offenders. Mr. Singleton is a graduate of Duke 
University and Harvard Law School.
    Next is Neil Fulton, United States Federal Public Defender 
for the District of North and South Dakota since 2010. Mr. 
Fulton formerly was in private practice and was also Chief of 
Staff to our new colleague, then Governor Mike Rounds. Mr. 
Fulton graduated from Yale University and the University of 
Minnesota Law School.
    Robert Boruchowitz--I may just call you Professor Robert--
Professor of Practice and Director of the Defender Initiative 
at Seattle University School of Law. He was Director of the 
Defenders Association in Seattle for many years and has 
published widely on misdemeanor defense cases. He is a graduate 
of Kenyon College and Northwestern University School of Law.
    Erica Hashimoto is Associate Dean and a professor at the 
University of Georgia School of Law. She is a former Assistant 
Federal Defender. Much of Professor Hashimoto's scholarship has 
been devoted to the right to counsel in criminal cases. She 
graduated from Harvard University and Georgetown Law Center.
    Chief Justice Cady, will you start out, please?

  STATEMENT OF HON. MARK S. CADY, CHIEF JUSTICE, IOWA SUPREME 
                    COURT, DES MOINES, IOWA

    Mr. Cady. Thank you very much, Mr. Chairman, Ranking Member 
Franken.
    I did have the honor to address this Committee 3 years ago 
on the issue of cameras in the courtroom and it is again an 
honor to be before you this morning to talk about this 
important issue of protecting the constitutional right to 
counsel for indigents being charged with misdemeanors.
    Before I begin my remarks, let me just briefly describe the 
background of the organization of the Council for Chief 
Justices, and I submit my testimony this morning as a member of 
the Board of Directors of that organization.
    It was established in 1949 and its purpose was to provide 
input and improve the administration of justice throughout the 
country. As you know, State courts handle 97 percent of all 
judicial proceedings in this country.
    The Conference of Chief Justices recognizes the Sixth 
Amendment right to counsel and the parallel State Constitution 
provisions that project the most important--some of the most 
important rights of people that are brought into our courts on 
criminal offenses.
    It is indeed important this morning that we remember the 
protection at the center of the issue that we address provided 
by the United States Constitution. It is a protection that, as 
the Chairman described, is trumpeted by Clarence Gideon over 50 
years ago and later extended by the U.S. Supreme Court to all 
criminal cases, including misdemeanors, where it could lead to 
a sentence of incarceration or even a suspended sentence.
    It is--it is a right that helps define our collective 
understanding of justice.
    Providing indigent defendants with representation, however, 
is fiscally challenging for many States. In 2014, the 
Conference of Chief Justices adopted a resolution entitled In 
Support of the Establishment of a National Center for the Right 
to Counsel, identified as H.R. 3407.
    The resolution noted that State and local governments 
continue to struggle to adequately fund legal representation 
for indigent criminal defendants. A copy of this resolution is 
attached to the written testimony.
    At present, the mechanism used to deliver indigent defense 
services nationally can best be described as a patchwork of 
programs rather than a comprehensive system. They are funded in 
different ways. They are structured to operate in different 
ways and even the guidelines for eligibility are different.
    Attached to the testimony is a spreadsheet describing the 
statutory provisions for indigent determination in most States, 
but I think a review of that information will demonstrate that 
courts have gone to considerable lengths to ensure that 
everyone with a bonafide need for representation can qualify 
for counsel.
    Indigent defense delivery systems in every State are 
underfunded; in many States, severely underfunded. Courts 
handling misdemeanor cases almost always have caseloads that 
are so high that they necessitate processing cases in almost an 
assembly line fashion.
    This leads to a high percentage of cases resulting in 
guilty pleas without counsel to get the benefit of receiving 
the fine and court costs as a sole sanction. Although this may 
look attractive to criminal defendants at the time and it may 
even induce them to waive legitimate defenses, they are exposed 
to many, many collateral consequences, as have already been 
identified. These consequences can make the quality of 
representation more and more essential.
    The conviction itself and the permanent and easily 
accessible record that it leaves can and does result in 
significant hurdles to future employment, education, housing 
and so many other opportunities to achieving a productive life.
    The States have made efforts to ensure that they are in 
compliance with their requirements under the Sixth Amendment to 
the Constitution to provide representation to indigent 
defendants. Nevada and Pennsylvania, for example, have recently 
established commissions to look into the issue.
    Other States have chosen to limit and redefine the number 
of charges that can carry the possibility of incarceration as a 
sanction in hopes of utilizing existing resources more 
effectively. North Carolina is an example.
    Washington's Supreme Court recently adopted mandatory 
misdemeanor caseload limits, as well as other representation 
improvements. These standards have brought attention to the 
misdemeanor issue for public defense and have resulted in 
public defense upgrades in hundreds of local courts there. 
These efforts do mark progress, but much, much more remains.
    The Conference of Chief Justices believes that the public 
would greatly benefit by the establishment of a national center 
for the right to counsel to fund innovations, support research 
on indigent defense delivery systems, support training and 
technology assistance programming, and to serve as a 
clearinghouse of information. The center could help identify 
the best practices currently employed nationally and, over 
time, help bring uniformity to this issue. It would also help 
improve the public confidence and trust in our criminal justice 
system.
    Thank you again for asking for our input on this very 
important matter. The Conference of Chief Justices stands ready 
to work collaboratively and cooperatively to craft solutions to 
this important issue.
    I will look forward and be happy to answer questions later 
on. Thank you.
    [The prepared statement of Mr. Cady appears as a submission 
for the record]
    Chairman Grassley. Thank you, Mr. Chief Justice.
    Mr. Singleton.

   STATEMENT OF DAVID A. SINGLETON, EXECUTIVE DIRECTOR, OHIO 
          JUSTICE AND POLICY CENTER, CINCINNATI, OHIO

    Mr. Singleton. Good morning, Chairman Grassley, Ranking 
Member Franken and Senator Durbin.
    I am delighted to be here this morning to offer my thoughts 
on this very important issue of protecting the right to counsel 
in misdemeanor cases. I think we can all agree that the problem 
is widespread and in my written testimony I have some examples 
from Ohio, recent examples where the courts of appeals had to 
reverse convictions where the right to counsel was denied.
    Rather than talk about those cases and rather than getting 
into lots of statistics and numbers, I want to do something 
different in my brief time this morning. I want to try and put 
a human face on this problem and talk about how misdemeanor 
convictions impact the lives of folks who are just trying to do 
the best they can in society and lead productive lives.
    There are some people out there who would say misdemeanors, 
what is the big deal; you do not go off to prison for a long 
time if you get convicted of misdemeanors. Misdemeanors matter. 
They matter because they can have life--lifelong impacts on 
people's lives, their ability to provide for themselves, and 
all sorts of collateral sanctions that apply that make that 
difficult.
    I want to tell you about Melinda. Melinda is a former 
client of mine. She is a mother of three and she has raised her 
children pretty much by herself. Back in the 1990's, she got 
convicted of misdemeanor offenses that stemmed from a seizure 
that she suffered. She has suffered from seizures since she was 
19 and had gone off the medication because the doctors were 
trying to find a new therapy for her.
    One afternoon while she was on the phone, she suffered a 
seizure and, luckily, her friend on the phone recognized it and 
called 911. The paramedics come. When the paramedics come, they 
find her three young children, ages 3, 4 and 5, downstairs 
unattended and there were cleaning supplies out and knives on 
the counter in the kitchen.
    They walked upstairs and there were missing screens in the 
windows, an electrical outlet not covered. They took her to the 
hospital. She got better. The paramedics reported what they 
found to the police. A couple of weeks later, Melinda got 
summoned to court where she learned she was being charged with 
child endangerment.
    A month after that, Melinda stood before the judge without 
a lawyer and she was appointed a public defender, but the 
public defender was not there. What the judge did was say, 
``Look, I am not sure why you are here based on the facts of 
this case, but I will tell you what I am going to do. If you 
plead no contest, I will allow you to get non-reporting 
probation. You do not have to show up and report to a probation 
officer. You can be on your way.''
    That is what Melinda did. The problem was that years later 
when she was struggling to earn a living to support her three 
children, she found this great job in a daycare center and she 
was good at it, she was very good at it. The employer loved 
her, the kids loved her. Then there was a change in the law 
that required a mandatory background check.
    When the employer found that she had been convicted of 
endangering children, they fired her, let her go. That was a 
job that Melinda loved and was good at.
    What would have happened had Melinda had a lawyer standing 
by her side? Would she have pled no contest to crimes for which 
she had a viable defense? That viable defense was, No. 1, she 
was cleaning her house on the day that this happened, cleaning 
her kitchen. That is why the cleaning supplies were out. She 
tried to get her landlord to fix the problems, but he told her 
it was not his responsibility because he had just sold the 
building to someone else.
    Would she have been found guilty? Perhaps not. She had a 
viable defense, but nobody told her that. As a result, she 
loses her income and her ability to support her children.
    Melinda is not alone. There are thousands of people in Ohio 
and millions across this country who are impacted by collateral 
sanctions.
    In the State of Ohio, there are 700 laws on the books that 
restrict people from working in certain industries; 20 percent 
of those apply to misdemeanor offenses. We know from the work 
that the ABA has done cataloging collateral sanctions across 
this country that this problem has huge dimensions. It is not 
just jobs. It is also the ability to get educational support, 
housing and the like.
    The time has come for us to do something about this 
problem, to make the promise of Gideon real. I urge you--I am 
not going to go through a lot of recommendations. I have read 
the recommendations from Professors Boruchowitz and Hashimoto 
and I agree with them and I agree with what the Chief Justice 
just said in terms of the establishment of a center. I urge 
this body to recommend that change happen and change happen 
soon.
    Thank you.
    [The prepared statement of Mr. Singleton appears as a 
submission for the record]
    Chairman Grassley. Thank you, Mr. Singleton.
    Mr. Fulton.

STATEMENT OF NEIL FULTON, FEDERAL PUBLIC DEFENDER, DISTRICT OF 
      SOUTH DAKOTA AND NORTH DAKOTA, PIERRE, SOUTH DAKOTA

    Mr. Fulton. Thank you, Mr. Chairman, Ranking Member Franken 
and Senator Durbin, for your interest in the issue and the 
invitation.
    In North and South Dakota, with 13 Indian reservations and 
approximately two-thirds of our cases in any given year arising 
from Indian country and the concurrent Federal and Tribal 
jurisdiction over many offenses, our interaction with Tribal 
courts in the Federal defenders office is frequent and the 
issue of misdemeanor representation in Tribal courts is 
critical to our practice.
    Many of the problems we encounter are similar to those you 
will hear from State practitioners, but some are unique to the 
interplay of Federal law and Tribal jurisdiction.
    A first and critical unique aspect about Tribal courts is 
that there is no Sixth Amendment right for Native American 
offenders in Tribal courts. Sentences of up to 1 year of 
incarceration can be imposed with no right to appointed counsel 
in Tribal courts.
    In instances where tribes allow counsel under their laws, 
in many instances, counsel is provided by lay advocates, not 
law trained individuals. That problem is exacerbated by the 
rural nature of most reservation areas. There simply are no 
lawyers.
    In South Dakota, the Chief Justice has initiated a program 
to draw more lawyers to rural areas because regardless of 
whether you are in Tribal or State court, there just is no 
lawyer available. In Tribal court, the problem is unique 
because there is no protection and no guarantee of a lawyer.
    As a result, guilty pleas without counsel are common, I 
would say typical, in my experience in Tribal courts. Why? It 
is the ultimate rational choice. You plead today, you get out; 
you assert your right to counsel and a defense, you will stay 
in jail.
    Additionally, because of concurrent Federal jurisdiction, 
many of our clients, unfortunately, believe that a guilty plea 
will provide them with double jeopardy protection against 
Federal charges down the road. That belief is mistaken.
    In fact, the concurrent Federal and Tribal jurisdiction 
exacerbates that problem because in many instances, Tribal 
misdemeanors are used as entry points to a Federal prosecution. 
As an example, an individual may be initially arrested for a 
simple assault or for a public intoxication or a liquor 
violation for a more serious assault charge or even a homicide.
    That individual is detained. Statements are obtained and 
the case is developed with that individual not realizing that 
Federal charges are available, not realizing the right to 
counsel and no guarantee thereof.
    Admissions are made. No global plea agreements are worked 
out. In some instances, the appointment of special United 
States Attorneys deputized in both Tribal and Federal court, 
the prosecution is initiated and driven by the person who will 
eventually pursue it in Federal court and the individual has no 
counsel at any point while they make critical admissions.
    Collateral consequences are severe. You have heard from 
other people about that and will hear more, but it is 
particularly acute in Indian country. Six of the 10 lowest per 
capita income counties are in North and South Dakota. They are 
all Indian country. Employment is unavailable endemically. If 
you have disqualifying misdemeanor convictions, it is even 
worse.
    Student aid is unavailable to lift people out of poverty 
and if you are ineligible for government subsidized housing in 
Indian country, that is to say you are ineligible for housing, 
period.
    In many instances, heads of households will plead guilty to 
misdemeanors, thus becoming ineligible to retain their housing 
and displacing both them and their family.
    Additionally, a disturbing collateral consequence is that 
un-counseled Tribal convictions can serve as predicates for 
certain Federal offenses. An example, the Eighth Circuit Court 
of Appeals has affirmed the use of un-counseled Tribal domestic 
assault convictions as predicate offenses for habitual domestic 
offender convictions under 18 USC 117.
    The efforts by Congress to address these issues in Tribal 
courts under the Indian Civil Rights Act, the Tribal Law and 
Order Act and VAWA have not solved the problem, at least not 
yet.
    My compatriots in other places have described instances 
where the Indian Civil Rights Act or the Tribal Law and Order 
Act protections have been ignored, either by mistake or bad 
faith; individuals receiving up to 2,500 days in detention post 
the enactment of TLOA, individuals receiving almost 2.5 years 
after TLOA was enacted, without counsel.
    The problem is the remedies to address these issues are 
very cumbersome. One has the right to pursue habeas corpus in 
Federal court, but you have to first exhaust your revenues, 
excuse me, remedies in Tribal court. That is a cumbersome 
process and you again face this rational choice of do I assert 
my rights or do I get out of jail now, and most people get out 
of jail now.
    Additionally, the Violence Against Women Act 
Reauthorization of 2013 expanded the number of people subject 
to this problem by giving tribes the ability to exercise 
jurisdiction over non-Indians in certain instances and both 
TLOA and VAWA expand the available sentencing resources and 
maximums that tribes can impose.
    This problem is significant, it is systemic, and it has a 
real impact on our clients on a daily basis. It needs to be 
addressed.
    I appreciate the Committee's interest in the topic and the 
opportunity to be here today. Thank you.
    [The prepared statement of Mr. Fulton appears as a 
submission for the record]
    Chairman Grassley. Thank you, Mr. Fulton.
    Professor Boruchowitz. Is that pretty close?

 STATEMENT OF ROBERT C. BORUCHOWITZ, PROFESSOR FROM PRACTICE, 
     SEATTLE UNIVERSITY SCHOOL OF LAW, SEATTLE, WASHINGTON

    Mr. Boruchowitz. That is very close, Senator. Thank you. 
Thank you, Ranking Member Franken and Senator Durbin. Thank you 
for holding this hearing.
    Misdemeanor public defense in much of the country is broken 
and in many places it hardly exists. Thousands of people go to 
jail every day without a lawyer. Other thousands have lawyers 
who are overwhelmed with cases, poorly trained, poorly paid, 
and operating without investigation and expert witness 
resources.
    As you have just heard, convictions result in heavy 
consequences besides jail and fines. As Federal Judge Lasnik 
said about two cities in Washington, ``Actual innocence could 
go unnoticed and unchampioned.''
    Capable lawyers can help avoid many of those convictions 
and consequences. In other cases, the amount of jail and fines 
could be diminished and cases against innocent people like 
David's client could be dismissed.
    Federal legislation and targeted funding could make a 
difference.
    Most people who go to court go to misdemeanor court. There 
are approximately 10 million cases a year; in many States at 
least one for every 30 residents. The cost is staggering, as 
the full cost of a misdemeanor is estimated to be about $1,700.
    This affects every American. Almost everyone knows someone 
who has been charged with a misdemeanor, whether a minor in 
possession of alcohol, shoplifting, driving with a suspended 
license, or something more serious, such as DUI or assault.
    I have seen judges run through the advice of rights so 
quickly that people do not understand what is being said. Many 
courts send defendants to talk to a prosecutor before they even 
have a chance to see a defender.
    I saw a judge in Arizona instructing defendants to waive 
their right. He said, ``I want you to waive your right to an 
attorney. You have a right to have an attorney, but I am not 
going to give you the public defender. You would have to go and 
hire one and I do not think you are going to do that. I think 
you and I are going to talk about this right here, right now, 
right.''
    Many court proceedings take only a few minutes, making 
justice impossible. I submitted a transcript of one that took 
less than 90 seconds. There is no way in that time that an 
accused person can understand and make a meaningful decision 
about whether to exercise their rights and how to present their 
perspective of the case for the judge to consider, and there is 
no way for the judge to know whether the person has made a 
knowing, intelligent and voluntary waiver of their rights or is 
making a valid guilty plea or to know anything about the 
defendant or the case and what an appropriate sentence should 
be.
    I have seen defenders so overwhelmed that they literally 
spend 5 minutes in a hallway talking to a client before 
advising her to plead guilty. The lawyers never asked her what 
happened in the case or what she wanted to do with it.
    The racial disproportionality in misdemeanors is 
significant. A black person is 3.7 times more likely to be 
arrested for marijuana possession than a white person, even 
though blacks and whites use marijuana at similar rates.
    Historically, although Seattle's African-American 
population is roughly 8 percent, more than 40 percent of the 
suspended license charges have been against African-Americans.
    A recent Federal court decision highlights many of the 
problems. The for-profit contract defenders in these two cities 
were each handling about 1,000 cases a year part-time. The 
judge found that public defense clients were systematically 
deprived of the assistance of counsel. There was almost no 
evidence that the defenders did any investigation or legal 
analysis and adversarial testing of the government's case was 
nonexistent. It was basically a meet-and-plead system.
    One way of responding to reducing the demand for defenders 
is that hundreds of thousands of cases could be reclassified or 
diverted, in my opinion, saving more than $1 billion a year. 
Each year, there are more than 700,000 arrests for drunkenness, 
disorderly conduct and vagrancy. There are about 600,000 for 
possession of marijuana.
    If drunkenness were treated as a health problem and not a 
crime, as Colorado does, for example, approximately $600 
million a year would be available for treatment and other uses. 
Savings easily could exceed $1 billion if disorderly conduct 
were included, not to mention suspended driver's license, which 
the Spokane City prosecutor, for example, has developed a 
diversion for, not only reducing the defender caseload by one-
third, but also saving hundreds of thousands of dollars and by 
combining with a relicensing program, yielded millions of 
dollars in revenue as people paid their fines.
    King County, Washington has law enforcement-assisted 
diversion, diverting drug and prostitution suspects to a social 
service program instead of jail and prosecution. An evaluation 
found that participants in that program were 58 percent less 
likely to be arrested.
    I recommend the Senate take several steps. Some existing 
Justice Department funding to the States could be devoted to 
misdemeanor public defense, with funding for pilot projects, 
training, research and development of relicensing and diversion 
programs.
    Some of the funding could be conditioned on a certification 
by the State that they are providing counsel for eligible 
defendants.
    The Senate should adopt the Gideon's Promise Act proposed 
by Senator Leahy, providing technical assistance and 
authorizing the attorney general to bring civil actions to 
remedy patterns or practices that deprive persons of their 
right to counsel.
    The Senate should adopt the national center for the right 
to counsel as proposed by Representative Deutch.
    It is a disgrace that 52 years after Gideon and 43 after 
Argersinger, thousands of accused persons face the power of the 
State alone. It is not fair, it is economically foolish and 
wasteful. The impact on people's lives is dramatic.
    The Congress can help remedy this situation. Thank you very 
much.
    [The prepared statement of Mr. Boruchowitz appears as a 
submission for the record]
    Chairman Grassley. Thank you, Professor.
    Professor Hashimoto.

 STATEMENT OF ERICA J. HASHIMOTO, ALLEN POST PROFESSOR OF LAW, 
       UNIVERSITY OF GEORGIA LAW SCHOOL, ATHENS, GEORGIA

    Ms. Hashimoto. Thank you. Thank you, Chairman Grassley, 
Ranking Member Franken, and Senator Durbin. Every year, 
thousands, if not millions, of defendants charged with 
misdemeanor criminal offenses are not represented by lawyers, 
even though our Constitution guarantees them the right to 
counsel.
    These widespread constitutional violations have created a 
crisis in which defendants charged with criminal misdemeanors 
are steamrolled by our criminal justice system.
    The Supreme Court has said that the processing of millions 
of criminal misdemeanors each year resembles assembly line 
justice. In one jurisdiction, it is known as McJustice, because 
of the breathtaking speed with which cases are resolved.
    In Florida, for instance, the adjudication of misdemeanor 
cases, including findings of guilt and sentencing, took an 
average of 3 minutes per case. In 3 minutes, a person 
transforms from a full rights-bearing citizen, presumed 
innocent, into a convicted criminal, subject to the 
government's authority to intrude in every part of her life.
    The searching pursuit of justice that the Constitution 
guarantees before States can deprive citizens of their freedom 
simply cannot happen in 3 minutes.
    Because of these concerns, the Supreme Court has held that 
there is a constitutional right to counsel in most misdemeanor 
cases. As the Court recognized, in a system in which speed 
often is substituted for care, lawyers can ensure that the 
constitutional rights of criminal defendants remain protected.
    When the right to counsel is denied, violations of 
fundamental constitutional rights, including the First 
Amendment right to free speech, the Second Amendment right to 
bear arms, the Fourth Amendment right to be free from 
unconstitutional searches and seizures, and the Fourteenth 
Amendment right to due process will occur. And without lawyers, 
deprivations of the protections that our founders enshrined in 
the Constitution become invisible and go uncorrected.
    In that sense, the Sixth Amendment right to counsel serves 
as the gateway to protecting all of the other constitutional 
rights of defendants. Lawyers also can assure that facts about 
defendants that may bear on guilt or sentencing and that may 
have gotten lost in the haste of pushing the case to a 
resolution are brought to the attention of the court.
    Despite its importance, the constitutional right to counsel 
has been ignored in many local and State courtrooms across the 
country. Because many jurisdictions do not keep data on 
misdemeanor representation rates, authors of numerous reports 
have had to go out to individual jurisdictions to watch what is 
actually happening in those courts and every report that has 
studied the issue of misdemeanor representation in States from 
Florida to Michigan to Kentucky to Washington and many States 
in between has found a significant percentage of misdemeanor 
defendants who do not have a lawyer and who have not waived the 
right to counsel.
    The failure to provide counsel has enormous costs above and 
beyond the average $30,000 a year the government spends 
incarcerating that person, including the loss of jobs that 
provide vital and often the only means of support to low income 
people, the inability to get jobs in the future, and the 
States' shuttling of children into State custody because their 
parents have been unconstitutionally incarcerated.
    The cost to State and local jurisdictions, to the 
defendants and their families, and to the community as a whole 
are immeasurable.
    There is a crisis in misdemeanor courts in communities 
across the country. The question is what to do about it. 
Federal legislation is vital in order to provide States and 
localities both with incentives to address the problem and 
assistance as they try to move toward constitutional 
compliance.
    Beginning with incentives, States and, in particular, local 
courts have no incentive to comply with the Sixth Amendment 
right to counsel because there is no cost to the denial of that 
right. Federal legislation needs to provide that incentive.
    If there is clear evidence that a jurisdiction is engaging 
in a pattern or practice of violating the constitutional right 
to counsel, the Department of Justice should have authorization 
to take action against that jurisdiction by filing for 
injunctive or declaratory relief.
    In addition, funding from the Federal Government should be 
conditioned, first, on providing data on representation rates 
in misdemeanor cases and, second, on having an indigent defense 
structure to ensure that counsel are available to represent 
defendants.
    Finally, as Chief Justice Cady pointed out, a national 
center for right to counsel would assist States as they try to 
move toward constitutional compliance.
    Such measures would bring us closer to the right to counsel 
guaranteed by the Sixth Amendment.
    Thank you for your attention to this issue.
    [The prepared statement of Ms. Hashimoto appears as a 
submission for the record]
    Chairman Grassley. Thank you, to all of you. I am going to 
call on Senator Durbin, if he would go first, please.
    Senator Durbin. That is kind of you, Mr. Chairman. Thank 
you very much.
    As I listen to the testimony here, several things come to 
mind. There is an answer, I think, that I believe is helpful 
and I would like your reaction to it.
    In 2008, we passed a bill here, which became the law, 
called the John R. Justice, let me get the titles right--
Prosecutors and Defenders Incentive Act and what we did with 
this was provide money through the Department of Justice to 
young prosecutors and public defenders who were willing to make 
a 3-year commitment and if they would make that commitment, we 
would help them pay back their student loans.
    It turns out to be an extremely popular program because 
many law school grads find it impossible to take these jobs--
they do not pay as much as some other opportunities--and we are 
denied their services.
    It has been a good law, I think, despite the fact that I 
sponsored it, and it has not been adequately funded. We had it 
authorized at $25 million. One year I believe that there was 
$10 million for the Nation put into this student loan 
forgiveness, and now we are down to about $2 million.
    We have helped thousands stay in these jobs and commit 
themselves to these jobs.
    Tell me what you think the impact of that would be in terms 
of providing more professional prosecutors and more public 
defenders, in your experience.
    Mr. Boruchowitz. Senator, it is a great program. It has 
made an enormous difference. The debt of many of our graduates 
now is in excess of $100,000 when they get out. If they are 
lucky, they can make $50,000 as a public defender or a 
prosecutor starting out. If they have an opportunity to go with 
a big firm making double or triple that, it is hard to go into 
public service.
    It would be enormously helpful to fund that fully so that 
defenders and prosecutors could be paid.
    However, it assumes that those jobs exist and if you are in 
a place like South Carolina, for instance, where the magistrate 
courts and the municipal courts frequently have no public 
defenders at all, first of all, you would have to get the local 
government to agree to fund the position and then hire the 
person who could pay their loan back. The jobs do not exist in 
a lot of these courts.
    If the Congress could take some steps in that direction, 
incentivizing, as Erica suggested, so that they could get 
funding, just as the law graduates could get funding, to enable 
the local governments to have the public defender positions, 
incentivize them, or, alternatively, authorize the Justice 
Department to bring actions against them if they do not provide 
counsel, then those are the kinds of incentives that would make 
a difference.
    As Senator Grassley pointed out, a lot of the States are 
ignoring their obligation. Your program is--when it passed, I 
had recently left public defense for academia and I know that 
it was very, very popular among defenders.
    Senator Durbin. I hope we can expand it. I would say to the 
Chairman, we are talking about the John R. Justice Act to help 
defer student loan payments for those who will give a 3-year 
commitment to become prosecutors and defenders, and I hope I 
can approach you a little later and talk about how we can 
adequately fund that.
    Let me also say that one of the things we are trying to do 
is to take a look at Federal sentencing, and the object, of 
course, is to reduce incarceration of those who are being held 
for an extraordinary period of time for offenses which might 
not merit mandatory minimums, for example, and money which is 
currently being diverted into the Bureau of Prisons might then 
be diverted into things that we have talked about here.
    We are talking about prosecutors and defenders. We are also 
talking about, I think, the prevalence--and I do not remember 
if I heard this--it is your testimony--of many of these 
criminal defendants dealing with substance abuse and mental 
illness, and diversion from our penal system, corrections 
system into treatment is certainly more valuable for the 
individual and, I think, for society at large.
    The last question I will ask in the minute or so left, if 
anybody would like to respond. In my State, there has been a 
suggestion that maybe we ought to change the law school 
curriculum so that in the third year there are more 
apprenticeships and more actual in-court experience by some of 
these law students, so they might then entertain possibilities 
of becoming prosecutors and defenders more realistically.
    Does anyone have a reaction?
    Ms. Hashimoto. I would agree with that, Senator Durbin. I 
think the ABA has moved in that direction and is really 
encouraging law schools across the country to expand their 
clinical and experiential offerings so that law students can 
serve the communities in which their law schools are housed and 
provide assistance to those folks and, when they graduate, be 
more capable of taking these jobs and be more experienced when 
they start those jobs.
    Senator Durbin. Thanks. Thanks, Mr. Chairman.
    Chairman Grassley. I am going to start out with Chief 
Justice Cady. Tell me if I am wrong, but I kind of believe that 
Iowa has a better record than a lot of States in providing 
defense in misdemeanor cases for indigents.
    Are there any approaches that Iowa has taken to address 
this problem that might help other States to improve compliance 
with the Sixth Amendment for misdemeanor defendants?
    Mr. Cady. There is, Senator. As a beginning to answer that 
question, I think what we have tried to do is educate our 
judges and our magistrates and, in turn, our prosecutors to 
understand what the problem is that we have all identified this 
morning, because to begin with, the myth has to be eliminated 
from the process that a disposition that results in a fine is a 
good outcome.
    I think a lot of the magistrates and the judges and the 
prosecutors in small misdemeanor cases work in that direction 
thinking that they are providing an outcome that will work for 
the offender.
    It does not. What we are trying to do is educate the people 
involved in our process so that our courts work in a way that 
it solves the problems of people that come into its courtroom 
instead of piling on to the problem.
    I think our focus has been for judicial education.
    Chairman Grassley. I am going to go to Mr. Fulton, please.
    How does the expansion of Tribal courts' jurisdiction, for 
instance, under the Violence Against Women Act and particularly 
for non-Native Americans, impact the problem of indigent 
representation for misdemeanor defendants, especially as it 
affects Federal proceedings?
    Many of us had concerns regarding the expansion of this 
jurisdiction when we reauthorized that legislation. Are there 
particular remedies the Committee could consider to address the 
right to counsel issues arising from Tribal court proceedings?
    Mr. Fulton. I think there are some things that could be 
done, Mr. Chairman.
    First, I think that in no circumstance should an un-
counseled conviction be an element, a sentencing enhancement, 
or a predicate offense for a subsequent offender statute under 
Federal law. It seems improper for our Federal laws to 
capitalize on unrepresented convictions, wherever they come 
from, Tribal or State court.
    The Violence Against Women Act and Tribal Law and Order 
Act, whether through lack of information or whatever basis, I 
have heard from people where tribes have exercised that 
expanded jurisdiction, but the protections under those statutes 
are not being provided and individuals are receiving sentences 
that are greater than they should receive.
    The remedy to fix that is to go to Federal court and pursue 
habeas corpus. I think that one thing the Committee could look 
at there is to eliminate a requirement to exhaust Tribal court 
remedies before seeking habeas under TLOA or VAWA. That would 
expedite that and make it a meaningful remedy so the individual 
would not have to sit in jail and go there.
    Then lastly, I think going back and looking at whether an 
expansion of Tribal court jurisdiction when resources may not 
be available to non-Natives and sentencing enhancements when 
there are existing Federal offenses that can cover many of 
these is something the Committee could do, as well.
    Chairman Grassley. Now, I am going to go to Professor 
Hashimoto.
    Your written testimony describes how misdemeanors and 
misdemeanor prosecutions have exploded. This seems to reflect a 
mind set that every problem has a criminal solution.
    If this trend, as I see it, is right--and you had it in 
your testimony, so I assume it is--what can be done to reverse 
the trend?
    Ms. Hashimoto. Thank you, Chairman Grassley.
    I think it is important for the education that Chief 
Justice Cady has talked about and, also, for States to 
undertake looking comprehensively at their criminal codes and 
identifying the offenses that are leading to the very high 
volume of criminal cases.
    Bob mentioned a couple of those, including driving on 
suspended licenses, disorderly conduct cases. All of these 
kinds of cases, particularly the ones that do not constitute 
threats to public safety, could easily be reclassified either 
as non-criminal cases or depenalized so that the collateral 
consequences do not attach to those.
    I think studying that problem in every State is very 
important because I think in every State, the types of offenses 
are slightly different and the offenses that are prosecuted at 
the highest rates are also slightly different.
    I do think that the States need some assistance looking at 
their criminal codes and determining ways to decriminalize some 
of those offenses.
    Chairman Grassley. Thank you.
    Now, Senator Franken and then after Senator Franken, 
Senator Klobuchar.
    Senator Franken. I just want to ask--thank you, Mr. 
Chairman, for this very important hearing.
    Just to the Chairman's question on court jurisdiction and 
VAWA on Indian Tribal courts, those cases tend to be not 
misdemeanor cases. Am I right?
    Mr. Fulton. The underlying predicates frequently are 
misdemeanor cases, Senator Franken.
    Senator Franken. They are.
    Mr. Fulton. Yes. I will give you an example. An individual 
is called to a house. There is a report of a disturbance. There 
is a public intoxication charge. There is a liquor violation 
charge. There is a simple assault charge. Those can then give 
rise down the road to the predicate offenses. Then the tribes 
will exercise what I would call misdemeanor analogs, simple 
assault for what is actually an aggravated assault. Frequently 
they are misdemeanors.
    Senator Franken. Okay. Thank you. In your testimony, you 
reference reports from colleagues suggesting that Tribal courts 
are failing to appoint effective counsel or failing to appoint 
counsel all together. Clearly, this is not unique to Tribal 
courts, as the testimony of all the witnesses testifies.
    You mentioned severe backlogs and a general lack of 
available lawyers in sparsely populated areas. You do the 
Dakotas or just South Dakota?
    Mr. Fulton. North and South Dakota, Senator.
    Senator Franken. I imagine you see that throughout the 
Dakotas.
    Mr. Fulton. Absolutely, and it is a problem not only in 
Tribal courts in the Dakotas, but also in State courts. I 
mentioned Chief Justice Gilbertson in South Dakota has started 
a program to try and incentivize lawyers to come back to 
underserved rural communities. It is just a problem of rural 
areas generally.
    Senator Franken. What, in your opinion, and there has been 
some testimony to this effect, what can we do to incentivize 
attorneys, when they are starting their careers, to consider 
serving the communities, these rural communities?
    Mr. Fulton. I think John R. Justice is great, Senator 
Franken. I have lawyers in my office that are beneficiaries of 
that. State programs like South Dakota has initiated that is 
similar to John R. Justice incentivizing people with student 
loan forgiveness or repayment to bring them back to underserved 
communities is a great idea.
    I have to be candid. There is a ceiling at some level. I 
love South Dakota. Not everyone chooses to live there. That is 
just fine, but it is a reality. But those programs do work and 
they do give people an opportunity. I think the discussion of 
law school education and apprenticeship programs are great.
    The University of Minnesota, my alma mater, has an 
excellent misdemeanor defense clinic and it, frankly, when I 
was there, incentivized a lot of people to go into indigent 
defense. And those are great models to follow.
    Senator Franken. University of Minnesota.
    Professor Boruchowitz, it seems to me that one of the major 
obstacles to solving the crisis is cost and you bring out in 
your testimony that this really is cost to not providing 
counsel.
    Some of the witnesses here today have suggested that there 
is a role for Congress to play in supporting an increase in 
funding for the type of programs that provide indigent 
defendants, but some of my colleagues might balk at the price 
tag associated with funding those programs.
    You have written the staggering--you just testified about 
the staggering cost of misdemeanor cases.
    Is it not true that a significant part of that cost is not 
just prosecuting the misdemeanors, but incarcerating 
misdemeanor offenders who may not have faced jail time at all 
had they been effectively represented by counsel?
    Tell us about this, the real cost here. Would it be less 
expensive if we were providing counsel?
    Mr. Boruchowitz. I think there are several different ways 
of answering that. First, there is what you could call the 
demand side, which is all the cases that need lawyers, and 
Spokane is a good example, I think, in answering all of your 
question.
    First of all, the prosecutor realized that with the 
caseload limits, which Chief Justice Cady mentioned, we now 
have in Washington, they were going to need lots more defenders 
if they did not get rid of some of the cases they had. Plus, 
she also did not have enough lawyers to do what she needed to 
do focusing on DUI and domestic violence.
    She initiated a diversion program to work with relicensing 
on suspended driver licenses. It took a third of the cases out 
of the system and as a result, they only had to add two lawyers 
to the defender office instead of many more.
    Second, they reduced the cost for her office, as the 
prosecutor, as well as the jail and the defender and they 
started collecting more revenue for the underlying fines that 
people with suspended licenses had because they helped them get 
their licenses back so they could work, drive their kids to 
school and so forth. They have brought in, over the past 
several years, $4 million in additional revenue that they 
probably would not have gotten otherwise.
    The cost of jailing somebody is significant. As Erica said, 
it is in the $30,000 a year range. For every person that you 
are not locking up, you are saving that money.
    On top of that, there is all the cost to the economy of 
somebody losing their job, their housing, all of the 
consequences that come from that.
    Then finally, I would say that there is some research to 
indicate, and my own experience confirms this, that when you 
have a lawyer at the first hearing, very often the lawyer can 
persuade the judge, ``My client is going to be safe to be in 
the community, you can let them out pending the next hearing,'' 
and you save jail costs there.
    For a relatively small investment in having the lawyer 
there, you can yield a much greater savings in the jail costs 
later on.
    Senator Franken. Thank you very much. Thank you, Mr. 
Chairman.
    Chairman Grassley. Senator Klobuchar.
    Senator Klobuchar. Thank you, Mr. Chairman. Thank you to 
Senator Franken for also being part of this hearing. It is a 
really important topic.
    I was once a prosecutor, ran an office of 400 people, and I 
remember you, Judge Cady, because I had you testify on the 
cameras in the courtroom issue, and you are back, when we had 
that hearing. Thank you for that.
    I thought--also, this is near and dear to our heart in 
Minnesota, because Gideon v. Wainwright, when Walter Mondale 
was the Attorney General, he actually led the Attorney General 
sent a letter supporting the right to counsel in that case. I 
know there are many issues that come out of it and have not 
been resolved, including this one. Thank you.
    I will start with you, Chief Justice. When an individual 
pleads guilty or no contest to a misdemeanor crime, there are 
consequences of that action that extend beyond the immediate 
fine or jail sentence.
    What other effect do you think these convictions can have 
that people do not think about immediately? And maybe you would 
like to answer that, as well, Mr. Singleton.
    Thank you.
    Mr. Cady. The consequences are many and they come down the 
line where they are not even considered at the time. That is 
largely because our constitutional standard is premised on the 
protection of someone's liberty from incarceration.
    The consequences that follow, whether they are employment, 
education, military service, whatever it might be, are not part 
of the constitutional standard that is sought to be protected.
    We have to uncouple our analysis of the issue at that point 
and understand that this involves the right to counsel, but it 
also involves making our justice system more fair and more 
just, because when we do become better in doing our work, we do 
avoid so many costs and so many heartaches later on down the 
line.
    I think it is imperative to understand that these 
collateral consequences oftentimes have much more impact than a 
jail sentence.
    Senator Klobuchar. Right. Mr. Singleton, do you want to 
elaborate on that a little bit?
    Mr. Singleton. I wanted to add--thank you for the question, 
Senator. One of the things I wanted to add that we have not 
talked about yet is these collateral sanctions or consequences 
can also lead to increased crime.
    One of the things that we do at the Ohio Justice and Policy 
Center is we have legal clinics in the community where we meet 
with folks who are impacted in terms of getting work, primarily 
getting work, but also other impacts, housing and the like, but 
who come to us because they want to be law-abiding, productive 
members of the community and they are shut out of work because 
of their criminal convictions.
    I had one client----
    Senator Klobuchar. We just did a letter on this, a group of 
Senators, for job application purposes, not having that be the 
first question.
    Mr. Singleton. That is terrific. I had a client a while 
back say, ``Listen, what am I supposed to do to support my 
family if I cannot get a job? I am going to have to do 
something,'' and too often that something is something that is 
illegal.
    I think that--I mean, this is indirect, but I think that if 
someone has a good lawyer, they can prevent the conviction, 
they can prevent the spiral of having collateral consequences 
that shut you out of work, I think that ultimately pays off in 
public safety for all of us because we are keeping people more 
stable and able to support themselves through legitimate work 
rather than resorting to crime.
    Senator Klobuchar. Very good. Thank you.
    Professor Hashimoto, you talked about the need for better 
data about indigent representation. How do you collect that 
data? Just based on some of the research you have done, I guess 
you could also answer that, Professor Boruchowitz. Just what 
you see as a model that works in States. Go ahead.
    Ms. Hashimoto. The Bureau of Justice Statistics has been 
very good in felony cases about requiring jurisdictions to keep 
pretty good data on who is being represented in felony cases 
and by whom, so whether it is public defenders, court-appointed 
counsel, or private attorneys. In felony cases, the data 
indicates that it is about a 99 percent representation rate.
    In misdemeanor cases, by contrast, there is just simply no 
nationwide data at all. I think the Bureau of Justice 
Statistics could be really helpful in helping to get some data 
systems up.
    My sense is that many, many, many misdemeanor courts 
already keep some data, they have got court records on these 
cases, and so all that would need to be added is a box that 
says ``Was the defendant represented by a lawyer; if yes, what 
kind of a lawyer.''
    Senator Klobuchar. Okay.
    Mr. Boruchowitz. I think collecting that data and then 
compiling it so that we have got some record of exactly what is 
happening on a nationwide basis is very important.
    Senator Klobuchar. Professor, just quickly. I was asking 
about models in other States that work the best.
    Mr. Boruchowitz. Right. Part of the problem is that a lot 
of these courts have their own systems that do not talk to 
other systems. And so having some incentive for the States to 
coordinate the data collection.
    Some States are very good about keeping track of how many 
cases individual lawyers have or at least what courts they are 
operating in, but other States do not do that. Being able to 
incentivize the States to coordinate the data and get their 
local--I mean, some States literally have hundreds of courts 
and so--and very often these are city courts with very little 
resources. Having their computer systems talk to the State 
system is not always to do, but being able to get all of them 
to report that data, as Erica suggested, incentivize them to do 
that perhaps with some Federal assistance to coordinate it.
    Senator Klobuchar. Thank you. I am out of time here, but I 
also wanted to thank you, Mr. Fulton, for your work. I know 
your counterpart in Minnesota and I know how hard that work can 
be.
    I do want you to know when I was a prosecutor, I testified 
at the legislature several times for full funding for public 
defenders. I actually argued that it was our best way to get 
good results if you have lawyers that are matched on both 
sides.
    Thank you.
    Chairman Grassley. Senator Coons, you arrived just at the 
right time.
    Senator Coons. Thank you, Chairman Grassley. I would like 
to thank you and Ranking Member Leahy and Senator Franken for 
calling this hearing.
    This is an important issue. We all know, the right to 
counsel is one of the foundational rights of our constitutional 
order. In misdemeanor prosecutions, as I know you have explored 
in great depth, which are the majority of all cases and 
prosecutions in the country, there is an uneven collection of 
data, uneven access to counsel, uneven representation both in 
terms of quality and timeliness and its impact on outcome.
    I am grateful for the chance for us to talk about this 
vital piece of criminal justice reform.
    In the last Congress, I was pleased to be able to join with 
Senator Sessions in holding a hearing about the Federal Public 
Defender Service and then working on the appropriation side to 
try and reduce some of the harmful impact of sequester on our 
judiciary as a whole, but, in particular, on the Public 
Defender Service.
    I just wanted to ask a few questions, if I might, since I 
suspect I am the very last thing between you and concluding the 
hearing.
    If I could, Mr. Singleton, there has been testimony about 
misdemeanor sentencing and the significant racial disparities 
which mirror some of the very disturbing racial disparities in 
the criminal justice system as a whole.
    One example cited earlier is that it is 3.7 times more 
likely that an African-American will be charged with marijuana 
possession than a white person despite identical rates of use.
    How does the lack of representation in misdemeanor cases 
contribute to or exacerbate the racial disparities in our 
criminal justice system?
    Mr. Singleton. I can speak certainly in terms of the 
experience in Cincinnati and what we find there is that if you 
are a person of color, you are more likely to be targeted for 
police enforcement. As a result of that, not having good 
representation just magnifies the problem that you face.
    You are more likely to wind up with a conviction. Actually, 
let me just say this. In Cincinnati, we have got our public 
defender in Hamilton County is getting better. It had some 
problems before, but it is getting better now. When I first 
came to the Cincinnati area in 2001, it was a disaster and 
because you had predominantly low income people of color in our 
municipal court, which is where misdemeanors are prosecuted, 
they were not getting adequate representation.
    You had so many more of them winding up locked up in jail 
when maybe they should not have been, but also accumulating 
these collateral consequences, which make it hard to get work, 
which drives the cycle of going in and out of the system.
    Senator Coons. Collateral consequences in terms of 
employment, access to housing, access to skills or training 
programs, lots of other things that once you have a criminal 
record continue to accumulate and in the absence of advice of 
counsel on a three strikes law, for example, what began as 
relatively minor misdemeanor offenses can end up having really 
significant consequences long term.
    Mr. Singleton. That is exactly right.
    Senator Coons. Are there other members of the panel who 
wanted to comment on this particular aspect of the impact of 
lack of counsel for misdemeanor charges?
    Mr. Boruchowitz. Senator, thank you for the question. I 
think that David Singleton has pointed out that it is a spiral. 
And one of the things that can effective lawyer can do is when 
you identify racial disproportionality happening, you can 
sometimes make a difference.
    I had a case myself in our juvenile clinic. The client was 
African-American. He was charged with trespass for literally 
walking into a shopping mall. He had been there 11 months 
earlier wearing a hood and in this particular shopping center, 
you are not allowed to wear a hood.
    Guess who they enforced that against? They enforced it 
against African-American teenagers. They told him you cannot 
come back for 1 year. He came back 11 months later and they 
arrested him just for showing up.
    I had been at a session at the University of Washington Law 
School a week or so earlier and I heard the prosecutor talking 
about we cannot have racial disparity. I know him and I could 
call him up. Not every lawyer can do that. He looked into the 
case and the next thing I know, the day before trial, the 
prosecutor dismissed the case, which they should have done. It 
made no sense to prosecute a young man just for showing up, 
particularly, in the first place, when all he did was wear a 
hood to get thrown out.
    If that young man did not have an effective lawyer, he 
could very easily have been convicted and the spiral would have 
continued.
    Senator Coons. If I could, Chief Justice Cady, we have 
heard testimony today that suggests as much as $1 billion in 
government resources could be saved by decriminalizing some 
offenses that would really be better treated as civil 
infractions, and that figure is in addition to the immeasurable 
benefit to our citizens who might have to pay a fine, but would 
not have to suffer diminished job prospects, loss of liberty, 
other things we have been talking about.
    In my home State of Delaware, there are some who have an 
interest in undertaking this task moving toward civil citation, 
but the process can be difficult both procedurally and 
politically.
    What advice would you have for States that want to rewrite 
portions of their criminal codes in ways that would make them 
more just, but also that would achieve the buy-in of the 
community, law enforcement, prosecutors, judges, and elected 
leaders?
    Mr. Cady. That is something that certainly needs to be 
explored and has been explored, but we also have to ensure that 
we are solving the larger problem by doing it, because 
sometimes switching into the civil enforcement concept does not 
shed the problems that can follow later on because there is 
still a record of that and the like.
    I just think it is important that we continue to be 
thoughtful about this. It is interesting, when I did testify 
before this body 3 years ago, the testimony was divergent. 
People had sides. I do not sense that at all this morning and I 
sense that this is an issue that is profound. It impacts people 
in such significant ways, and we are all pointing to the same 
thing.
    I think it just illustrates that when we sit in a 
contemplative way and think about ways to make our process work 
in a just way, it solves so many problems, whether it is the 
cost avoidance later on or whether it is the racial disparity, 
the problem that has now surfaced in our criminal justice 
system that we are all aware of.
    I think this is a unique opportunity for us to come 
together on this issue and see how it can solve so many other 
things.
    Senator Coons. Thank you, Mr. Chief Justice. That is a 
great concluding comment and I appreciate both the testimony of 
the witnesses and your calling this hearing today. Thank you, 
Mr. Chairman.
    Chairman Grassley. I would like to have the last 5 minutes. 
Before I do that, do any of you have followups you want to ask?
    [No response]
    Chairman Grassley. Then I will conclude this with a couple 
questions.
    Kind of a philosophical approach here, but it also has 
practical, and I would like to have you all listen and any or 
all of you that want to address it.
    Some of the testimony today makes me wonder what is really 
behind many misdemeanor prosecutions. States and localities are 
fining defendants who cannot pay fines. Rather than 
prioritizing serious misdemeanors that may pose a real threat 
to the community, I have concerns that what might be driving 
many of these cases is money and the people who are paying the 
real costs are people who cannot afford it.
    No one is really seeking jail time. Fines are being imposed 
and fees are monitoring--for monitoring are paid to private 
companies and when people cannot pay those fines, they go to 
jail for not paying the fines that were imposed for minor 
offenses.
    Two questions. What is driving States and localities to 
establish a system and do you think that the current system 
looks uncomfortably like a minor--modern debtors' prison? Any 
of you.
    Ms. Hashimoto. Thank you, Chairman Grassley. Yes. I think 
that is exactly what is happening. What we are seeing in States 
across the country is local courts that, particularly after the 
recession hit, did not have money to keep their courts afloat 
and so began funding their local courts through the fines 
assessed to usually poor people. The only way to get those fees 
out of poor people was by threatening them with incarceration, 
at which point people would beg for money from their families.
    There are stories of this from across the country. We have 
private probation companies threatening to revoke probation and 
incarcerate people if they cannot pay; unconstitutional under 
Bearden v. Georgia, but it is happening across the country. 
Because there are no lawyers in those courtrooms, there is 
nobody to say ``this is unconstitutional, you cannot do this.''
    Mr. Boruchowitz. I think you are right, Senator. It is 
consistent with the Justice Department finding about the town 
in Missouri. And often it is really counterproductive because 
it costs so much money to lock people up. It costs more money 
to lock them up than it does to get the money from them to pay 
the fines for which you are locking them up.
    There are many, many courts that have what they pay or 
stay, pay your fine or go to jail, without any consideration of 
the ability to pay and if they cannot pay, they cannot be 
locked up. If they did not have a lawyer in the first place, 
they cannot be locked up for violating the condition of the 
probation.
    There is no question that money is driving a lot of this 
and you can see it when you go into some of these lower level 
courts and the focus of everybody from the clerk to the judge 
to the bailiff, the sheriff, is how do we get money from this 
person and how do we get a fine. There are standard fines that 
are imposed often in hundreds of dollars or more without any 
consideration of whether the person can pay.
    Chairman Grassley. Anybody else?
    Mr. Fulton. If I could, Mr. Chairman. One thing that I 
think is true in Tribal courts is that and also a unique factor 
is it becomes a proxy for enforcement of addiction issues, 
dealing with addiction issues.
    Singlehandedly, the most common misdemeanor offenses we see 
in people's background are tribal liquor offenses or public 
intoxication. It becomes a proxy for dealing with problems of 
addiction and homelessness a lot of times in tribal 
communities.
    Mr. Singleton. I just wanted to add one thought. I agree 
that money drives a lot of this, but I think we also have a 
cultural issue here and the cultural issue is I think we over-
prosecute in this country.
    I think we tend to bring into court and charge criminally 
people we are mad at and we lock up people we are mad at rather 
than people who are a true danger to the community. I think 
that that is also behind the explosion of misdemeanor cases, as 
well as felony cases, in our criminal justice system.
    Yes, we should prosecute people who break the law and 
pose--and lock up people who pose a serious danger to the 
community, but most of the cases in municipal court in Hamilton 
County, Ohio are not very serious at all, yet they can have 
huge repercussions if there is a criminal conviction.
    Chairman Grassley. Mr. Chief Justice, do you have anything 
to add to the other four?
    Mr. Cady. Mr. Chairman, I would just add that the explosion 
of misdemeanor filings and convictions across the country and 
in our State of Iowa, too, certainly has been looked at as a 
revenue opportunity and that has exacerbated the issue that 
brings us here this morning.
    I would just tell you that in our State, we try to collect 
the fine for a short period of time and if not, we refer it to 
the prosecutor, who gets an opportunity to try to collect the 
fine. About half of our counties have a process where the 
prosecutor does that. After that, after a year, it is shipped 
out to a private company and they go after it like any other 
debt collection.
    Chairman Grassley. I am going to end with this question 
then for Professor Bruer--Robert. [laughter] Than you very 
much.
    Washington State has adopted approaches to take driving 
with suspended license misdemeanor cases out of criminal 
justice. That is a way to avoid triggering the constitutional 
right to counsel and its accompanying State expense. It is my 
understanding that this has taken a fair proportion of 
misdemeanor cases out of the criminal justice system in that 
State.
    However, it is also my understanding that additional 
misdemeanor cases are being filed that add to the criminal 
justice system and negate all the driving cases that have been 
moved out.
    Is there--is that your understanding of Washington's 
experience and if it is, what is causing new misdemeanor cases 
to take the place of the old and what can be done about it? Am 
I right?
    Mr. Boruchowitz. You are partially right, Senator.
    Chairman Grassley. Go ahead.
    Mr. Boruchowitz. We have reduced dramatically the number of 
driving while license suspended third degree cases. There used 
to be probably 100,000 a year in Washington and I think those 
have been reduced by at least half, maybe more than half.
    The two largest cities, Seattle and Spokane, hardly file 
any anymore because they divert them or they put them in 
relicensing programs.
    There has been some increase in filings, nothing close to 
the amount that has gone away. One of your staff asked me to 
look into that in Spokane and I did check with the prosecutor 
and the prosecutor said, yes, there has been some increase 
since the recession, but nothing close to the volume of what we 
are taking out with suspended driver license.
    Really there are three different things happening. One is 
diversion accompanied with relicensing programs and local 
prosecutors can do that without any State action.
    Second, the legislature narrowed the type of offense that 
could lead to suspended driver license, and then the department 
of licensing passed a regulation that narrowed the group. There 
are fewer cases that are eligible for it and then within that, 
the prosecutors are filing fewer.
    Of course, when you do not get your license suspended, you 
cannot get arrested for driving with license suspended, with 
saves a lot of money all around.
    In general, the volume of misdemeanor cases has declined in 
Washington very dramatically. We used to have over 300,000 a 
year, now there is something like 220,000 or 210,000, and a big 
part of that drop has been getting rid of the DWS-3 cases.
    Chairman Grassley. Thank you very much, and all my 
colleagues who have come. I appreciate very much your testimony 
and the participation of everybody.
    I will adjourn the hearing. By the way, the record will be 
open for 1 week. You may get questions from any of us on the 
Committee. Please answer in writing.
    [Whereupon, at 11:28 a.m., the hearing was concluded.]

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