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Effective Advocacy in the Lower Criminal Courts, American University College of Law (Roberts), 2011

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45 U.C. DAVIS L. REV. (forthcoming Winter 2011)

AMERICAN

SSRN Draft, Nov. 21, 2011

~..

UNIVERSITY

WASHINGTON
COL LEG E

OF

LAW

American University Washington College of Law
Washington College of Law Research Paper No. 2011-32

WHY MISDEMEANORS MATTER: DEFINING EFFECTIVE
ADVOCACY IN THE LOWER CRIMINAL COURTS

Jenny Roberts

This paper can be downloaded without charge from
The Social Science Research Network Electronic Paper Collection

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Why Misdemeanors Matter: Defining Effective Advocacy in the Lower Criminal Courts
Jenny Roberts*
ABSTRACT: Most individuals accused in our nation’s criminal courts are not charged with
murder, rape, drug sales, or even less serious felonies. The vast majority of charges are in the
lower courts, for misdemeanors such as marijuana possession, driving with a license suspension
for failure to pay tickets, assault, disorderly conduct, or public intoxication. Misdemeanor
adjudications have exploded in recent years, with one recent study estimating that the volume of
misdemeanor cases nationwide has risen from five to more than ten million between 1972 and
2006. At the same time, violent crime and the number of felony cases across the country have
decreased markedly.
A common misperception is that misdemeanor charges might lead to a night in jail and the
punishment of going through the process — often requiring a number of court appearances —
culminating in dismissal, deferred adjudication, or a quick guilty plea with community service, a
fine, or perhaps some small amount of jail time. Yet the consequences of even the most “minor”
misdemeanor conviction can be far reaching, and include deportation, sex offender registration,
and loss of public housing and student loans. In addition, criminal records are now widely
available electronically and employers, landlords, and others log on to check them. These
“collateral consequences” of a misdemeanor conviction are often more dire than any direct
criminal penalty.
What often stands between an individual and an avoidable misdemeanor conviction, with its
harsh effects, is a good lawyer. Yet a profound crisis exists in the lower courts, brought about by
a widespread lack of zealous representation for indigent people charged with misdemeanors.
Many individuals charged with low-level crimes receive representation from defense attorneys
with overwhelming caseloads, in a criminal justice system singularly focused on rapid finality in
the large numbers of docketed cases. Despite this urgent situation, the body of scholarship on the
right to effective representation and the indigent defense crisis has largely ignored
misdemeanors. This Article describes how ineffective-assistance jurisprudence is undeveloped
for misdemeanors and how published professional standards for defense advocacy have failed to
address misdemeanors. There is almost no guidance about proper norms for this distinct
category of cases. This Article calls for responses to the misdemeanor representation crisis from
the three groups situated to make a difference in this area, based on their particular institutional
competencies: the judiciary, the defender community, and professional organizations that draft
standards for practice. Without proper administration, including effective defense
representation, the current approach to mass misdemeanor processing and prosecution
significantly impedes substantive justice for the individual, public perception of justice, and
public safety.

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Introduction ..................................................................................................................................... 1
I. The Differences, and Certain Similarities, Between Misdemeanor and Felony Lawyering .. 8
A.
Higher Caseloads and Workloads for Misdemeanor Attorneys ..................................... 11
B.
Minor Criminal Convictions Lead to Major Collateral Consequences .......................... 13
C.
Complexities of Misdemeanor Practice ......................................................................... 17
D.
Coercion and Plea Bargaining in the Misdemeanor Context ......................................... 19
II. Lack of Guidance on the Meaning of Effective Assistance of Counsel for Misdemeanors. 21
A.
The Threshold Issue of the Right to Counsel in Misdemeanor Cases ........................... 22
B.
The Failure to Define Effective Misdemeanor Lawyering ............................................ 24
1.
Lack of Misdemeanor Representation Guidance In Ineffective-Assistance-of-Counsel
Jurisprudence ........................................................................................................................ 24
2.
Lack of Misdemeanor Representation Guidance In Professional Standards for
Defense Representation ........................................................................................................ 30
III. Institutional Competencies In Responding to the Need for Misdemeanor Standards ........... 36
A. The Legislative Role: Moving Minor Misdemeanors Out of the Criminal Justice System . 37
B. The Role of Courts as Provocateurs .................................................................................... 39
1.
Structural Impediments to Development of Misdemeanor Ineffective Assistance
Jurisprudence and Suggestions for Reform .......................................................................... 40
a. Structural Impediments .................................................................................................. 41
b.
Suggestions for Avoidance of Structural Impediments, and Reform ......................... 43
2. The Problem of Resource Deprivation Driving Constitutional Rules ............................... 47
3.
The “Localism” Problem in Ineffective-Assistance Jurisprudence ............................ 49
C.
The Role of Professional Organizations: Promulgating Standards for Misdemeanor
Representation........................................................................................................................... 54
D.
The Role of the Defender Community ........................................................................... 57
1.
Collateral Consequences as a Focus of Misdemeanor Attorney Training and Practice
59
2.
Lowering High Rates of Waiver of the Right to Counsel in the Lower Courts ......... 61
Conclusion .................................................................................................................................... 64

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Introduction
It is time to end the wasteful and harmful practices that have
turned our misdemeanor courts into mindless conviction mills.
— Former Florida Supreme Court Chief Justice Gerald Kogan

1

In Detroit, Michigan, the Misdemeanor Defender Professional Corporation has a flat-fee
contract with the City of Detroit to handle between 12,000 and 14,000 cases each year.2 The five
part-time Corporation attorneys must carry between 2,400 and 2,800 misdemeanors a year,
which is more than 500 percent greater than the nationally-recognized caseload recommendation
of 300–400 misdemeanors per year for full-time defenders.3 This means that Corporation
attorneys will spend an average of thirty-two minutes, or about $51 of legal services, on each
client’s case.4 Thirty minutes south, in Woodhaven, Michigan, a similar situation occurs. There,
a person charged with a misdemeanor who is entitled to court-appointed counsel will be
represented at a pretrial conference by “house counsel” who represents every indigent defendant
in court that day.5 Those facing misdemeanor charges cannot meet their attorney until the day of
court, “which could be anywhere from one to three weeks after arraignment.”6 The court
administrator in Woodhaven “estimated that, in an average year, there would be one motion filed
by house counsel and maybe two jury trials involving an indigent defendant.”7
These stories of assembly-line representation in the lower criminal courts receive little
attention. Instead, scholars, practitioners, and the press have highlighted inadequate
representation cases such as one where a court deemed “effective” the performance of a sleeping
lawyer in a death penalty case.8 A series of DNA exonerations of innocent men and women in
high-profile cases have also “reveal[ed] a trail of sleeping, drunk, incompetent and overburdened
* Associate Professor, American University, Washington College of Law. Many thanks to Gabriel “Jack” Chin,
Robert Dinerstein, Cara Drinan, Roger Fairfax, Babe Howell, Lewis Grossman, Mary Holland, Cynthia Lee,
Stephen Lee, Binny Miller, Rebecca Rosenfeld, Juliet Stumpf, Andrew Taslitz, Robert Tsai, and Ronald Wright, as
well as participants at panels and workshops at LatCrit 2009, Syracuse University College of Law, the 2009 AALS
Clinical Conference, American University, Washington College of Law, and the William & Mary School of Law
Faculty Colloquium. For research assistance, thanks to Esther Cajuste, Sarah Comeau, Erin P. Creaghe, Sarah
Kravitz, Jenny Bone Miller, Nick Moore, and Diana Pak.
1
ALISA SMITH & SEAN MADDAN, NAT'L ASS'N OF CRIMINAL DEF. LAWYERS, THREE-MINUTE JUSTICE: HASTE AND
WASTE IN FLORIDA'S MISDEMEANOR COURTS 8 (2011) [hereinafter THREE-MINUTE JUSTICE].
2
NAT'L LEGAL AID & DEFENDER ASS'N, “A RACE TO THE BOTTOM,” EVALUATION OF THE TRIAL-LEVEL INDIGENT
DEFENSE SYSTEMS IN MICHIGAN 23 (2008) [hereinafter RACE TO THE BOTTOM].
3
Id; see also infra note 81 and accompanying text (describing nationally recommended caseload standards).
4
RACE TO THE BOTTOM, supra note 2, at 23.
5
Id. at 27.
6
Id. (noting that “the court does not give out house counsel phone numbers until the day of court”).
7
Id.
8
See McFarland v. Texas, 928 S.W.2d 482, 505 (Tex. Crim. App. 1996); Jeffrey L. Kirchmeier, Drink, Drugs, and
Drowsiness: The Constitutional Right to Effective Assistance of Counsel and the Strickland Prejudice Requirement,
75 NEB. L. REV. 425, 460-63 (1996); Bob Herbert, In America; The Death Factory, N.Y. TIMES, Oct. 2, 2000, at
A27, available at http://www.nytimes.com/2000/10/02/opinion/in-america-the-deathfactory.html?scp=2&sq=sleeping%20lawyer%20death%20penalty&st=cse.

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defense attorneys.”9 These shocking examples and others well deserve continuing criticism; the
stakes were high, and the representation was egregious.
Contrary to popular belief, however, the vast majority of criminal cases in the United States
are not felonies. They are misdemeanors: “minor” dramas played out in much higher numbers
every day in lower courts across the country.10 A 2008 analysis of eleven state courts revealed
that misdemeanors comprised seventy-nine percent of the total caseload in those courts.11 In
addition to comprising the majority of criminal cases, misdemeanors are also on the rise. One
recent study estimated that the volume of misdemeanor cases nationwide has risen from five to
more than ten million between 1972 and 2006.12 This change has taken place across diverse
jurisdictions. In New York State, misdemeanor arrests rose from 363,634 in 2001 to 423,947 in
2010.13 The public defender in Lancaster County, Nebraska experienced a fifty-six percent
increase in the number of new misdemeanor cases between 2003 and 2007.14 In Florida, almost
9

Bad Lawyering, THE INNOCENCE PROJECT, http://www.innocenceproject.org/understand/Bad-Lawyering.php (last
visited July 11, 2011).
10
See N.Y. STATE DIV. OF CRIMINAL JUSTICE SERVS., ADULT ARRESTS: 2001–2010, available at
http://criminaljustice.state.ny.us/crimnet/ojsa/arrests/NewYorkState.pdf (listing statistics for “adult arrests” for New
York States in 2010 as 584,558 total, of which 423,947were misdemeanors and 160,611 were felonies) [hereinafter
NEW YORK STATE ADULT ARRESTS: 2001–2010].
11
ROBERT C. LAFOUNTAIN ET AL., EXAMINING THE WORK OF STATE COURTS: AN ANALYSIS OF 2008 STATE COURT
CASELOADS 47 (2010), available at http://www.ncsconline.org/d_research/csp/2008_files/EWSC-2008Online%20Version%20v2.pdf; see also NEW YORK STATE ADULT ARRESTS: 2001-2010, supra note 10 (noting
almost 600,000 arrests in 2010, with felonies comprising just over 160,000 of that total); Steve W. Perry,
Prosecutors in State Courts, in U.S DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS BULLETIN, at 6 (Ser. No. NCJ
213799, 2006) (“In 2005 State court prosecutors reported closing over 2.4 million felony cases and nearly 7.5
million misdemeanor cases”), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/psc05.pdf. The actual difference
between prosecuted misdemeanors and felonies is even greater, as only 95% of all state prosecutors’ offices reported
handling misdemeanor cases. Id. at 4, tbl.5. County attorneys or perhaps police officers presumably prosecuted
misdemeanors in the remaining five percent of jurisdictions, or the court handled the disposition without any
prosecutorial involvement.
12
See ROBERT C. BORUCHOWITZ, MALIA N. BRINK & MAUREEN DIMINO, NAT’L ASSOC. CRIMINAL DEFENSE
LAWYERS, MINOR CRIMES, MASSIVE WASTE: THE TERRIBLE TOLL OF AMERICA’S BROKEN MISDEMEANOR COURTS
11 (2009) [hereinafter MINOR CRIMES, MASSIVE WASTE] (citing National Center for State Courts, 2007 Criminal
Caseloads Report finding that in data gathered in 12 states in 2006, there was a “median misdemeanor rate of 3,544
per 100,000” people).
13
See NEW YORK STATE ADULT ARRESTS: 2001–2010, supra note 10 (listing numbers demonstrating that
misdemeanor arrests climbed substantially each year from 2000 to 2009, with the exception of 2004); see also
JUSTIN BARRY & LISA LINDSAY, OFFICE DEPUTY CHIEF ADMIN. JUDGE, CRIMINAL COURT OF THE CITY OF NEW
YORK: 2009 ANNUAL REPORT 26-27 (2010), available at
http://www.nycourts.gov/courts/nyc/criminal/AnnualReport2009.pdf.
14
ELIZABETH NEELEY, LANCASTER COUNTY PUBLIC DEFENDER WORKLOAD ASSESSMENT JULY 2008, at 1 (2008),
available at
http://ppc.unl.edu/userfiles/file/Documents/projects/Public%20Defender/Public%20Defender%20Workload%20Ass
essment.pdf. The corresponding felony picture is quite different. Between 2000 and 2009, the violent crime rate in
the United States fell by 39%. Both violent and property crime rates in 2009 were at their lowest recorded levels
since 1973. Jennifer L. Trumann & Michael R. Rand, Criminal Victimization, 2009, in U.S. DEP’T JUSTICE, BUREAU
OF JUSTICE STATISTICS BULLETIN, at 2-3, (Ser. No. NCJ 231327, 2010) available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/cv09.pdf; cf. FED. BUREAU OF INVESTIGATION, U.S. DEP’T OF JUSTICE,
CRIME IN THE UNITED STATES 2005: PERCENT CHANGE IN VOLUME AND RATE PER 100,000 INHABITANTS FOR 2
YEARS, 5 YEARS, 10 YEARS (2009), available at http://www2.fbi.gov/ucr/cius2009/data/table_01a.html (showing
how, between 2000 and 2009, the violent crime rate fell 15.2% per 100,000 inhabitants. Except for burglary, violent
crime fell in every category, including murder, rape, and aggravated assault. It also fell 31.5% for motor vehicle
theft during that ten-year period.). In New York, for example, violent felony arrests dropped from more than 51,000

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“a half million people, or approximately 3% of the state’s adults, pass through [the]
misdemeanor courts each year.”15 These numbers reflect a recent explosion of misdemeanor
adjudications flooding trial courts around the country. Although full exploration of the causes of
rising misdemeanor volume are beyond the scope of this Article, the adoption of zero-tolerance
policing and broken windows theory — which claim that policing minor quality-of-life offenses
helps control violent crime — are largely responsible for the trend in many jurisdictions.16
The high-volume misdemeanor system is clearly in crisis. Misdemeanor defenders handle
caseloads far above nationally recommended standards,17 yet have few resources to investigate
and perform the core tasks for their clients’ cases.18 They practice in overcrowded courts where
defendants are pressured to enter quick guilty pleas without adequate time to consult with the
attorney they may have just met;19 their potential clients often face pressure to waive the right to
counsel in order to enter a guilty plea.20 This high-volume crisis is also a high-impact crisis for
individuals, families, and communities that struggle with the everyday effects of even a minor
conviction.21
The Sixth Amendment right to effective assistance of counsel applies to many misdemeanor
cases and implicates many of these issues of high workloads, resource deprivation, and
substantive and procedural justice.22 There are also ethical rules, state law, and professional
guidelines relevant to criminal defense representation. Yet the crisis in effective misdemeanor
representation confronts a blank slate of standards specific to misdemeanor practice. The
Supreme Court has never applied Strickland v. Washington’s two-pronged ineffective assistance
of counsel test in the misdemeanor context.23 Although some lower court decisions have done so,
in 2001 to 44,000 in 2010. NEW YORK STATE ADULT ARRESTS: 2001-2010, supra note 10 (listing overall felony
total as dropping from 169,942 in 2001, to 160,611 in 2010).
15
See THREE-MINUTE JUSTICE, supra note 2, at 9, app.C.
16
See James Q. Wilson & George L. Kelling, Broken Windows, ATLANTIC MONTHLY, Mar. 1982, at 29 (introducing
the “broken windows” theory); see also Peter A. Barta, Note, Giuliani, Broken Windows, and the Right to Beg, 6
GEO. J. ON POVERTY L. & POL’Y 165, 168–69 (1999) (summarizing Mayor Giuliani’s “zero-tolerance policing”
approach and its effects on New York City’s homeless population); cf. BERNARD E. HARCOURT, ILLUSION OF
ORDER: THE FALSE PROMISE OF BROKEN WINDOWS POLICING 6-7 (2001) (scrutinizing the evidence and policy
behind the “broken windows” theory).
17
See infra Part I.A.
18
See AM. BAR ASS’N STANDING COMM. ON LEGAL AID & INDIGENT DEFENDANTS, GIDEON’S BROKEN PROMISE:
AMERICA’S CONTINUING QUEST FOR EQUAL JUSTICE 10-11, 19 (2004), available at
http://www.abanet.org/legalservices/sclaid/defender/brokenpromise/fullreport.pdf [hereinafter GIDEON’S BROKEN
PROMISE]; MINOR CRIMES, MASSIVE WASTE, supra note 12, at 38.
19
See infra Part I.D (discussing coercive aspects of plea bargaining in the lower courts).
20
See infra Part III.D.2 (discussing waiver of the right to counsel).
21
See infra Part I.B (describing some of the collateral consequences of misdemeanor convictions, including
deportation, loss of public housing, and employment barriers).
22
See infra Part II.A (explaining how the Sixth Amendment right to counsel applies in any case where the defendant
is sentenced to actual or suspended incarceration, and how many states offer more generous levels of misdemeanor
representation, including states that confer the right to counsel for all misdemeanors regardless of the sentence). The
vast majority of individuals charged with misdemeanors, and who have a right to counsel, qualify for stateappointed counsel. See Mary Sue Backus & Paul Marcus, The Right to Counsel in Criminal Cases, A National
Crisis, 57 HASTINGS L.J. 1031, 1034 (2006) (“Poor people account for more than eighty percent of individuals
prosecuted.”).
23
See Strickland v. Washington, 466 U.S. 668, 687 (1984) (noting that defendant, to win claim of ineffective
assistance of counsel, must demonstrate (1) that defense counsel’s representation was deficient as judged by
prevailing professional norms, and (2) that this deficiency was prejudicial to the defendant). For an insightful and
comprehensive examination of the Court’s jurisprudential journey towards the two-prong ineffective assistance test,

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these cases do not tackle the difficult question of what differences there are, if any, between
effective representation in felony and misdemeanor cases.24 Professional standards, an important
source for norms of effective assistance both as a constitutional and practical matter, also do not
consider the specific issues and problems relating to misdemeanor advocacy.25 In short, there are
no standards against which to judge the critical failures of representation in the lower criminal
courts.26
Careful analysis of the current state of misdemeanor representation in the United States is
inadequately developed, and the subject merits much more than the scant attention it now
receives both in criminal justice literature and in practice.27 Thus, at a time when some
commentators have called for a greater focus on the felony representation crisis at the expense of
misdemeanor representation,28 this Article recognizes a utilitarian argument for more attention to
low-level cases, which affect so many individuals and communities and have serious hidden
consequences.29 As one report noted, “[E]xperts have observed innumerable times that public
defender offices across the country are underfunded. What is essentially unreported is how this
underfunding disparately impacts those accused of misdemeanors.”30
The crisis in misdemeanor representation and the lack of specific standards for this large
category of cases raises important questions for courts, professional organizations, and defender
offices. Should there be separate standards for misdemeanor representation? If felony
see Donald A. Dripps, Effective Assistance of Counsel: The Case for an Ex Ante Parity Standard, 88 J. CRIM. L. &
CRIMINOLOGY 242, 269-78 (1997); see also infra Part II.B.1 (discussing lack of Supreme Court cases on
misdemeanor ineffective assistance).
24
See infra note 158 and accompanying text.
25
See infra Part II.B.2.
26
See infra Part I.
27
Although the literature has largely failed to examine misdemeanors and other minor adjudications separately,
there are some notable exceptions. See, e.g., Erica J. Hashimoto, The Price of Misdemeanor Representation, 49 WM.
& MARY L. REV. 461, 461 (2007); John Mitchell, Redefining the Sixth Amendment, 67 S. CAL. L. REV. 1215, 1222
(1994) (focusing on a “practical definition of the Sixth Amendment in the lower courts”). With respect to the
realities of the lower criminal courts, see Michael Pinard, Broadening the Holistic Mindset: Incorporating
Collateral Consequences and Reentry Into Criminal Defense Lawyer, 31 FORDHAM URB. L.J. 1067, 1069-70 & n.9
(2004); Ian Weinstein, The Adjudication of Minor Offenses in New York City, 31 FORDHAM URB. L.J. 1157, 1160-62
(2004); Steven Zeidman, Policing the Police: The Role of the Court and the Prosecution, 32 FORDHAM URB. L. J.
315, 316 (2005) (discussing New York City). Recent commentary on broken windows theory, although focused on
the policing aspects of minor charges, is also relevant here. See, e.g., HARCOURT, supra note 16 at 6–7 (questioning
whether broken windows is an effective strategy). With respect to misdemeanors more generally, “[T]here is a
startling dearth of data on misdemeanor case processing.” Josh Bowers, Grassroots Plea Bargaining, 91 MARQ. L.
REV. 85, 89 (2007) (noting how New York City is “something of an exception” to this general observation).
28
See Darryl K. Brown, Rationing Criminal Defense Entitlements: An Argument From Institutional Design, 104
COLUM. L. REV. 801, 801 (2004) (suggesting default rules by which indigent defense providers should ration scarce
resources, including “a harm-reduction principle that gives a qualified preference to suspects facing greater potential
punishments”); Hashimoto, supra note 27 at 461 (arguing that states should free up limited defender resources by
“significantly curtailing the appointment of counsel in low-level misdemeanor cases,” but ignoring the collateral
consequences of misdemeanor convictions). For a robust debate over the need for triage in criminal defense work,
compare Mitchell, supra note 27, at 1222 (1994) (focusing on a “practical definition of the Sixth Amendment in the
lower courts” and urging recognition of the need for triage in decision-making process about how to distribute
defender resources), with Monroe H. Freedman, An Ethical Manifesto for Public Defenders, 39 VAL. U. L. REV.
911(2005) (rejecting Mitchell’s call for triage and re-definition of the Sixth Amendment right to counsel). See also
John B. Mitchell, In (Slightly Uncomfortable) Defense of “Triage” by Public Defenders, 39 VAL. U. L. REV. 925
(2005) (responding to Freedman).
29
See infra Part I.B.
30
MINOR CRIMES, MASSIVE WASTE, supra note 12, at 26.

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ineffective-assistance jurisprudence and existing professional standards apply to misdemeanors,
where should misdemeanor lawyers look for guidance about such misdemeanor-specific issues
as higher caseloads, fewer resources, and plea offers and guilty pleas at the first court
appearance? Given the many structural obstacles to development of a jurisprudence of
ineffective misdemeanor lawyering,31 how might courts shape ineffective-assistance law to
address misdemeanor-specific situations? Should professional organizations rely on
commentary or rather black-letter misdemeanor-specific standards in order to guide
misdemeanor representation?
What often stands between an individual and an unnecessary misdemeanor conviction is a
good lawyer. The quality of representation that an individual gets in a misdemeanor case is
significant on many levels, including substantive justice for that individual, public perception of
justice, and public safety. First, people sometimes go to jail for misdemeanor convictions.
Sentences may be short compared to those for serious felony charges, but six months in jail or
several years of probation, often with monthly fees,32 is substantial for the individual and his
family. 33 An effective lawyer will advance sentencing arguments that help avoid unnecessary
incarceration in appropriate cases, whereas absence of such advocacy can lead to unjust
sentences. In addition, the potential for wrongful convictions and the troubling phenomenon of
innocent people pleading guilty is great in low-level cases.34 Exonerations in high-profile and
high-stakes cases are well documented and publicized,35 and inadequate representation is one of
the core causes of wrongful convictions.36 Although there is no such empirical study of wrongful
convictions in the lower courts, the conviction of the innocent through trial or guilty plea is
surely not limited to capital cases and serious felonies.37 Unfortunately, as one report noted,
“There is no national Innocence Project for the hundreds of thousands of misdemeanor cases that
lack DNA evidence.”38
Second, the relationship between a person charged with a misdemeanor and defense counsel
is a meaningful part of the overall experience that person has with the criminal justice system. 39

31

See infra Part III.B.1.
See, e.g., IDAHO CODE ANN. § 20-225 (West 2011) (“Any person under state probation or parole supervision shall
be required to contribute not more than seventy-five dollars ($75) per month as determined by the board of
correction.”).
33
See infra notes 54 to 62 and accompanying text (describing statutes in which misdemeanors in various
jurisdictions can carry up to two, four, or even ten years in jail). This observation is also based on my experience in
Syracuse, New York, where failure to complete drug treatment court for misdemeanor possession regularly resulted
in nine- to twelve-month sentences.
34
See infra Part III.D (discussing coercion and plea bargaining in the misdemeanor context).
35
See, e.g., Innocence Project Case Profiles, THE INNOCENCE PROJECT, http://www.innocenceproject.org/know/
(last visited Mar. 10, 2011).
36
See EMILY M. WEST, COURT FINDINGS OF INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS IN POST-CONVICTION
APPEALS AMONG THE FIRST 255 DNA EXONERATION CASES 1 (2010), available at
http://www.innocenceproject.org/docs/Innocence_Project_IAC_Report.pdf.
37
See Daniel S. Medwed, Innocentrism, 2008 U. ILL. L. REV. 1549, 1559 (“It is fair to say that the proven cases of
actual innocence are just the tip of the innocence iceberg, so to speak.”).
38
RACE TO THE BOTTOM, supra note 2, at 15.
39
See Am. Council of Chief Defenders, Statement on Caseloads and Workloads at 2-3, available at
http://www.nlada.org/DMS/Documents/1189179200.71/EDITEDFINALVERSIONACCDCASELOADSTATEME
NTsept6.pdf [hereinafter Statement on Caseloads and Workloads] (“Excessive public defender caseloads and
workloads [that] threaten the ability of even the most dedicated lawyers to provide effective representation to their
clients . . . can . . . lead to the public’s loss of confidence in the ability of our courts to provide equal justice.”); see
32

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Procedural justice matters. Inadequate assistance of counsel in criminal cases affects both the
individual’s and the public’s perception of the criminal justice system’s legitimacy, which may
undermine future willingness to obey the law.40 Third, recent research has revealed that saddling
large numbers of individuals with permanent criminal records significantly impedes access to
employment. This leads to more crime among those individuals, thus undermining public
safety.41 Some understanding of this link has even begun to filter into the public dialogue about
crime and public safety.42
Two ways in which the quality of misdemeanor representation matters more today than ever
before merit particular attention: the proliferation of criminal records and the related
phenomenon of an explosion in collateral consequences for minor criminal convictions. Recent
technological advances allow easy access to individuals’ criminal records.43 In some states, even
cases that end in a dismissal remain publicly available and may require the individual to
affirmatively file, and sometimes pay, for expungement.44 This is an enormous change from
only several years ago, when researching a person’s criminal record often required a trip to the
local courthouse or multiple courthouses.45 The result is that employers and landlords can
also JUSTICE POLICY INST., SYSTEM OVERLOAD: THE COSTS OF UNDER-RESOURCING PUBLIC DEFENSE 23 (2011)
[hereinafter SYSTEM OVERLOAD].
40
See TOM R. TYLER & YUEN J. HUO, TRUST IN THE LAW 175 (2002) (“We find that people are responsive to two
social aspects of their experience with legal authorities—their feelings about the procedural justice of their
experience and their trust in the motives of those authorities.”); see also E. ALLAN LIND & TOM R. TYLER, THE
SOCIAL PSYCHOLOGY OF PROCEDURAL JUSTICE 1-2 (1988). As Roscoe Pound noted more than 80 years ago: “It is in
[the handling of petty prosecutions] that the administration of criminal justice touches immediately the greatest
number of people. . . . The bad physical surroundings, the confusion, the want of decorum, the undignified offhand
disposition of cases at high speed, the frequent suggestion of something working behind the scenes, which
characterize the petty criminal court in almost all of our cities, create in the minds of observers a general suspicion
of the whole process of law enforcement which, no matter how unfounded, gravely prejudices the law.” MALCOLM
FEELEY, THE PROCESS IS THE PUNISHMENT: HANDLING CASES IN A LOWER CRIMINAL COURT 6 (1979) (quoting
ROSCOE POUND, CRIMINAL JUSTICE IN AMERICA 190-191 (1930)).
41
See, e.g., N.Y. STATE BAR ASS’N, RE-ENTRY AND REINTEGRATION: THE ROAD TO PUBLIC SAFETY 56 (May 2006),
available at
http://www.nysba.org/AM/Template.cfm?Section=Home&TEMPLATE=/CM/ContentDisplay.cfm&CONTENTID=
11415 (“[T]he safety of our communities and citizens is jeopardized when [convicted persons] . . . revert to a life of
crime” because their permanent criminal records make it difficult, if not impossible, for them to acquire
employment, housing, and other necessities.”); Megan C. Kurlychek & Robert Brame, Scarlet Letters and
Recidivism: Does an Old Criminal Record Predict Future Offending?, 5 CRIMINOLOGY & PUB. POL’Y 483, 486, 490
(2006) (concluding that individuals with permanent criminal records are relatively more likely to commit crimes in
the future).
42
See, e.g,. Joseph P. Fried, When ‘Help Wanted’ Comes With a Catch, N.Y. TIMES (Sept. 17, 2006),
http://www.nytimes.com/2006/09/17/jobs/17convicts.html?_r=2&scp=1&sq=conviction&st=nyt (describing the
hiring hurdles that those with criminal records must overcome, and noting several proposals to address these
obstacles). Certainly much of the public and political concern is driven by fiscal reality. See Adam Liptak, Right and
Left Join Forces on Criminal Justice, N.Y. TIMES, Nov. 24, 2009, at A1.
43
See generally James B. Jacobs, The Expanding Scope, Use, and Availability of Criminal Records, 11 N.Y.U. J.
LEGIS. & PUB. POL'Y 177 (2007–2008) (“This Article documents how criminal history records are expanding in
scope and how their dissemination is proliferating”).
44
See, e.g., MD. CODE ANN., CRIM. PROC. § 10-105(a) (West 2011) (requiring that a person petition for
expungement of a nolle prosequi); MD. CODE ANN., CTS. & JUD. PROC. §7-202 (West 2011) (“[A] $30 filing fee for
docketing a petition for expungement of records in a criminal case, unless all records to be expunged relate to a
charge of which the petitioner has been acquitted.”).
45
James B. Jacobs, Mass Incarceration and the Proliferation of Criminal Records, 3 U. ST. THOMAS L.J. 387, 401
(2006).

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quickly search criminal records, so that even when there is no legal barrier to housing or
employment for the individual, there is an effective bar.46 One commentator has aptly described
“the stigma of [a] criminal record as a ‘negative curriculum vitae.’”47 The effect of widelyavailable criminal records cannot be underestimated at a time when, “[a]ccording to the U.S.
Department of Justice, there were about 71 million people with a criminal record in the United
States as of December 2003, a number approaching 25% of the entire population.”48
Access to criminal records coincides with a recent, and exponential, growth in the collateral
consequences of criminal convictions.49 The rise in misdemeanor prosecutions and convictions
has negative effects that reach far beyond the confines of the criminal courthouse. Individuals
with misdemeanor convictions may be automatically deportable, regardless of their work ties,
time spent, and family connections in the United States.50 They may lose or be unable to get
public housing and benefits, their driver’s license, or access to student loans.51 If convicted of
certain misdemeanor sexual offenses, they will be required to register as a sex offender, with
severe restrictions on where they can live and work.52
Unfortunately, the vast majority of indigent individuals charged with low-level crimes
receive representation characterized by overwhelming caseloads and by courts singularly
committed to rapid finality and churning the large numbers of docketed cases through the

46

See, e.g., Devah Pager, The Mark of a Criminal Record, 108 AM. J. SOC., 937, 958 (2003) (describing study where
testers applied for real jobs with identical credentials other than race and criminal record: the white non-offender
tester received callbacks 34% of the time he applied; the white offender received callbacks for 17% of applications;
and the black offender tester callback ratio plummeted to 5%); see also Devah Pager, Bruce Western, & Bart
Bonikowski, Discrimination in a Low-Wage Labor Market: A Field Experiment, 74 AM. SOC. REV. 777 (2009)
(rerunning earlier Pager study in New York City, with similar results); Smart on Crime: Recommendations for the
Next Administration and Congress, THE 2009 CRIMINAL JUSTICE TRANSITION COALITION, 131-34 (Nov. 5, 2008),
http://www.sentencingproject.org/doc/publications/inc_transition2009.pdf (recommending various executive and
legislative changes to deal with bars to employment for individuals with criminal records).
Collateral — or hidden — consequences fall into two general categories. First are those enforced through civil
statutes or regulations, such as immigration laws or professional licensing schemes, that apply to individuals
convicted of qualifying crimes. The second category involves the more diffuse, but equally powerful and more farreaching, effects on families and communities when a person is involved in the criminal system even on a relatively
minor charge. These effects include a family struggling to survive financially, where one member must pay fines
and court costs, or the loss of work days to numerous court appearances. See generally FEELEY, supra note 40 at 6;
K. Babe Howell, Broken Lives from Broken Windows: The Hidden Costs of Aggressive Misdemeanor Policing, 33
N.Y.U. REV. L. & SOC. CHANGE 271, 296 (2009) (describing how policing misdemeanors through the criminal
system imposes significant financial and legitimacy costs).
47
Jacobs, supra note 42, at 420.
48
UNIF. COLLATERAL CONSEQUENCES OF CONVICTION ACT 1 (Proposed Draft 2009), available at
http://www.law.upenn.edu/bll/archives/ulc/ucsada/2009_amdraft.htm.
49
Margaret Colgate Love, Paying Their Debt to Society: Forgiveness, Redemption, and the Uniform Collateral
Consequences of Conviction Act, 54 HOW. L.J. 753, 770-74 (2011) (describing the expanded scope and severity of
collateral penalties in federal and state law in past two decades).
50
See Anthony Lewis, Abroad at Home; ‘This Has Got Me in Some Kind of Whirlwind,’ N.Y. TIMES, Jan. 8, 2000,
at A13 (describing deportation order against Mary Anne Gehris, who was adopted and brought to the United States
as an infant, based on a misdemeanor conviction from her young adulthood).
51
See, e.g., 20 U.S.C. § 1091(r)(1) (2003) (listing varying ineligibility periods for federal student loans, based on
number of drug-related convictions); 21 U.S.C. § 862a (2003) (bars to public benefits); 42 U.S.C. § 13661 (2003)
(bars to public housing).
52
See, e.g., KAREN J. TERRY & JOHN S. FURLONG, SEX OFFENDER REGISTRATION AND COMMUNITY NOTIFICATION:
A “MEGAN’S LAW” SOURCEBOOK (describing the registration and the community notification processes with which
sex offenders must comply).

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system.53 There are a number of institutional actors that can respond to the misdemeanor
representation crisis. Legislators can relieve the numerical and fiscal pressure on the lower courts
through selective misdemeanor decriminalization. Professional organizations can draft specific
misdemeanor representation standards or explain why standards should be the same for felonies
and misdemeanors. The defender community can articulate misdemeanor standards and institute
practices leading to more effective representation. In particular, the defense community could
argue for resources to provide counsel at the first appearance, to ameliorate the problem of
waiver of the right to counsel and guilty pleas at arraignment. Finally, the judiciary has a central
role in articulating standards that recognize the realities of misdemeanor practice. The judiciary
must provoke state legislatures to adequately fund the criminal justice system that the
legislatures — and the executive, through the police power — have chosen to populate with a
wide variety of broadly-enforced misdemeanor crimes.
Part I of this Article provides the definition of a misdemeanor and then sets out important
differences and similarities between misdemeanor and felony representation. Part II describes
the lack of constitutional and other norms, such as professional standards, that speak specifically
to the effective assistance of misdemeanor counsel. Part III explores the institutional
competencies of legislators, the courts, organizations that draft professional standards, and the
defender community, noting ways in which each can take part in the critical dialogue about the
representation necessary for fair administration of misdemeanors.
I.

The Differences, and Certain Similarities, Between Misdemeanor and Felony
Lawyering
Just what is a misdemeanor? As a general matter, jurisdictions divide crimes “into two
categories — felony and misdemeanor. Misdemeanors are the less serious offenses, for which
punishment is generally limited to one year in jail.”54 Despite this general method of defining
misdemeanors by the penalty imposed for the offense, legislatures deviate in different ways,
53

See GIDEON’S BROKEN PROMISE, supra note 18, at 2. But see Ronald F. Wright, Padilla and the Delivery of
Integrated Criminal Defense, 58 UCLA L. REV 1515, 1531-33 (2011) (describing more salutary practices in some
large public defender offices).
54
MINOR CRIMES, MASSIVE WASTE, supra note 12, at 11. In some jurisdictions, there are also “infractions” or
“violations,” which are generally offenses that are categorized as non-criminal even though they may result in a jail
sentence. See, e.g., N.Y. PENAL LAW § 221.05 (McKinney 2008) (making marijuana possession a violation); N.Y.
PENAL LAW § 10.00(3) (McKinney 2009) (“’Violation’ means an offense, other than a ‘traffic infraction,’ for which
a sentence to a term of imprisonment in excess of fifteen days cannot be imposed.”). The federal criminal code has
three categories of misdemeanors, all for crimes with a maximum sentence of less than one year. See 18 U.S.C.A. §
3559(a) (West 2011) (listing Class A, B, and C misdemeanors with sentences, respectively, of six months to one
year, thirty days to six months, and five to thirty days). All crimes with maximum sentences under five days, or
where the statute does not authorize imprisonment, are classified as “infractions.” 18 U.S.C.A. § 3559(a)(9) (West
2011). Federal criminal law also recognizes the category of “petty” offenses. See 18 U.S.C. §19 (2003) (including
Class B and C misdemeanors as well as infractions in the definition of “petty offense”). However, this distinction
has been relevant only in connection with defining the right to a jury trial. See Duncan v. Louisiana, 391 U.S. 145,
151 (1968) (“So-called petty offenses were tried without juries both in England and in the Colonies and have always
been held to be exempt from the otherwise comprehensive language of the Sixth Amendment's jury trial
provisions.”); see also Baldwin v. New York, 399 U.S. 66, 69 (1970) (“[N]o offense can be deemed ‘petty’ for
purposes of the right to trial by jury where imprisonment for more than six months is authorized.”); Williams v.
Florida, 399 U.S. 78, 86 (1970) (holding that six-person jury satisfies the Sixth Amendment’s jury trial
requirement). In Baldwin, the Court rejected New York State’s request that it “draw the line between ‘petty’ and
‘serious’ to coincide with the line between misdemeanor and felony.” Baldwin, 399 U.S. at 69.

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resulting in a broad range of crimes that qualify as misdemeanors depending on the particular
jurisdiction. The result is that a misdemeanor is any crime the relevant legislature labels a
“misdemeanor.”55 For example, second degree assault in Maryland, which encompasses
common-law battery as well as the mere intent to frighten by threat of battery, with no
requirement of physical injury,56 is a misdemeanor “subject to imprisonment not exceeding 10
years.”57 By contrast, misdemeanor assault in New York State has a maximum punishment of
one year in jail and a requirement of physical injury;58 if there is no physical injury, the charge
would be harassment — a class of noncriminal “violation” that carries a maximum sentence of
fifteen days in jail.59 In California, certain crimes are called “wobblers,” meaning that they can
be charged as either a felony or a misdemeanor.60 Iowa has “simple,” “serious,” and
“aggravated” misdemeanors;61 an aggravated misdemeanor conviction can result in up to two
years’ incarceration.62
Misdemeanors can be found throughout most sections of any jurisdiction’s criminal code,
including misdemeanor charges for theft, assault, drug offenses, sex crimes, hate crimes, and
fraud.63 Many public order offenses are misdemeanors.64 There are also numerous
misdemeanors in local ordinances, enacted by the town or city council or legislature. For
example, the Broward County, Florida Board of County Commissioners made it a misdemeanor
to “throw or deposit litter on any occupied private property within the county, whether owned by
55

As the Minnesota Supreme Court has noted, “Absent any constitutional definition or classification, it is competent
for the legislature, in creating or defining an offense, to name it, classify it, and prescribe the punishment for it,
subject only to the limitation that excessive fines shall not be imposed, nor cruel or unusual punishments inflicted.”
State v. Kelly, 15 N.W.2d 554, 564 (Minn. 1944).
56
See Cruz v. State, 407 Md. 202, 209 n.3 (2009) (explaining various common law crimes encompassed in
Maryland’s misdemeanor assault statute).
57
MD. CODE ANN., CRIM. LAW §3-203 (LexisNexis 2011). Many other misdemeanors carry lengthy potential
sentences. See, e.g., MD. CODE ANN., CRIM. LAW §5-601 (LexisNexis 2011) (setting out maximum penalty of four
years for person convicted of misdemeanor possession of controlled substance); MD. CODE ANN., CRIM. LAW §7116 (LexisNexis 2011) (setting out a maximum penalty of 10 years for a person convicted of misdemeanor failure to
deliver documents for merchandise).
58
N.Y. PENAL LAW § 120.00 (McKinney 2009).
59
N.Y. PENAL LAW § 240.26 (McKinney 2008); see also N.Y. PENAL LAW § 10.00(3) (McKinney 2009).
60
See CAL. PENAL CODE § 17(b) (West 1999) (the same type of offense may be prosecuted as either a felony or a
misdemeanor); People v. Statum, 50 P.3d 355, 357 (Cal. 2002) (describing example of “wobbler” crime); see also
Erin R. Yoshino, California’s Criminal Gang Enhancements: Lessons from Interviews with Practitioners, 18 S.
CAL. REV. L. & SOC. JUST. 117, 139 (2008) (discussing “wobbler” crimes).
61
IOWA CODE § 701.8 (2003) (“All public offenses which are not felonies are misdemeanors. Misdemeanors are
aggravated misdemeanors, serious misdemeanors, or simple misdemeanors. Where an act is declared to be a public
offense, crime or misdemeanor, but no other delegation is given, such act shall be a simple misdemeanor.”).
62
Id. § 903.1(2) (2003) (“When a person is convicted of an aggravated misdemeanor, and a specific penalty is not
provided for, the maximum penalty shall be imprisonment not to exceed two years.”).
63
See, e.g., DEL. CODE. ANN. tit. 11 § 1304(b)(1) (West 2011) ("Hate crimes shall be punished as follows . . . If the
underlying offense is a violation or unclassified misdemeanor, the hate crime shall be a class A misdemeanor.");
IND. CODE ANN. § 35-43-6-12(a)(1) (West 2011) (listing the elements of Class B misdemeanor home improvement
fraud); KY. REV. STAT. ANN. § 218A.1422(2) (West 2011) ("Possession of marijuana is a Class B misdemeanor,
except that, KRS Chapter 532 to the contrary notwithstanding, the maximum term of incarceration shall be no
greater than forty-five (45) days."); N.Y. PENAL LAW § 155.25 (McKinney 2010) ("Petit larceny is a class A
misdemeanor."); N.C. GEN. STAT. ANN. § 14-33(a) (West 1993) ("Any person who commits a simple assault or a
simple assault and battery or participates in a simple affray is guilty of a Class 2 misdemeanor."); OR. REV. STAT.
ANN. § 163.415(2) (West 2003) ("Sexual abuse in the third degree is a Class A misdemeanor.").
64
See, e.g., N.Y. PENAL LAW § 240.00-240.70 (McKinney 2008) (establishing twelve public order offenses as
misdemeanors).

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such person or not.”65 Under the New York City Administrative Code General Vendor Law, it is
a misdemeanor for individuals to sell goods or services in the streets, sidewalks, and public spaces of
New York City without a license from the Department of Consumer Affairs. 66 Both of these local
ordinances authorize jail sentences.67
Advocacy in misdemeanor cases is similar in many respects to advocacy in felony cases.
This is demonstrated by the fact that, in some jurisdictions, there are high potential penalties for
misdemeanors and certain offenses move between misdemeanor and felony categories.
Additionally, however a particular crime is labeled, the collateral consequences of misdemeanor
convictions render less significant the line between felonies — at least low-level ones — and
misdemeanors.68 For example, all felonies and a good number of misdemeanors lead to one or
more collateral consequences based in federal, state, or local law.69 Finally, whatever level of
case they handle, all criminal defense lawyers must have skills in areas including interviewing,
fact investigation, counseling, negotiation, and trial and sentencing advocacy.
Despite these similarities, several significant differences between felony and misdemeanor
lawyering highlight the need for specific attention to standards for misdemeanor representation.
This Part explores three differences: the higher caseloads misdemeanor lawyers are expected to,
and indeed do, carry; the particular potential for using collateral consequences of misdemeanor
convictions in creative plea bargaining and sentencing advocacy; and the greater prevalence of
complex constitutional issues in some misdemeanor cases, particularly public order offenses.70
65

BROWARD, FLA., CODE ch. 21, art. V, § 21-76 (2001).
See N.Y. ADMIN. CODE § 20-453 (2004) (making unlawful unlicensed general vending).
67
Id. § 20-472 (2004) (stating that unlicensed vending is a “misdemeanor punishable by a fine of not less than two
hundred fifty dollars nor more than one thousand dollars, or by imprisonment for not more than three months or by
both such fine and imprisonment”); BROWARD, FLA., CODE ch. 21, art. V § 21-80 (2001) (authorizing a sentence of
up to five hundred dollars, imprisonment in the county jail not to exceed sixty days, or both for littering
misdemeanor).
68
See AM. BAR ASS’N, CRIMINAL JUSTICE STANDARDS: PLEAS OF GUILTY xi (3d ed. 1999) (“[T]he collateral
consequences of convictions . . . have increased dramatically . . . . This has also diminished the significance of the
distinction between pleading guilty to a felony or a misdemeanor, as the latter may also carry significant future
consequences for the defendant.”).
69
See UNIF. COLLATERAL CONSEQUENCES OF CONVICTION ACT, supra note 45, at 2-3.
70
Another significant area with both differences and similarities between misdemeanors and felonies is that of the
well-documented racial and economic disparities of individuals in the criminal justice system. See, e.g., MICHELLE
ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE AGE OF COLORBLINDNESS (2010); see also Marc
Mauer, Justice for All? Challenging Racial Disparities in the Criminal Justice System, 37 HUM. RTS. 14 (2010).
Although the causes of these disparities cut across both types of cases, see id. at 14 (describing causes of racial
disparity in criminal justice system as “complicated,” but listing four key factors: “Disproportionate crime rates”;
“Disparities in criminal justice processing”; “Overlap of race and class effects”; and “[i]mpact of ‘race neutral’
policies”), the effect of racial and economic disparity is particularly significant in the misdemeanor realm. This is in
part due to the sheer volume of misdemeanor prosecutions, see supra notes 12-15 and accompanying text, and thus
the large number of non-white individuals charged in the lower courts and leaving those courts with a permanent
criminal record. See UNIF. COLLATERAL CONSEQUENCES OF CONVICTION ACT, supra note 45, at 1 (“According to
the U.S. Department of Justice, . . . [m]inorities are far more likely than whites to have a criminal record. Almost
17% of adult black males have been incarcerated, compared to 2.6% of white males, and almost half have a criminal
record.”); see also Pager, supra note 46. Another factor contributing to racial disparities is that, unlike violent crime,
many misdemeanor arrests flow from deliberate policing choices linked to particular neighborhoods, which are often
non-white neighborhoods. See Howell, supra note 46, at 292-93. Finally, the “war on drugs” has a well-documented
disparate effect on blacks and Latinos, and drug offenses make up a healthy part of lower court dockets. See Paul
Butler, One Hundred Years of Race & Crime, 100 J. CRIM. L. & CRIMINOLOGY 1043, 1048 (2010) (“Three-fourths
of those imprisoned for drug offenses are black or Latino. In seven states, 80% to 90% of imprisoned drug offenders
are black. Such disparities cannot be explained by disproportionate use of drugs by African Americans; blacks don't
66

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A. Higher Caseloads and Workloads for Misdemeanor Attorneys
The Department of Justice, courts, and advocacy organizations have recently focused their
attention on the role of excessive defender workloads in the indigent defense crisis.71 Caseload
concerns led New York State in 2009 to pass legislation directing its court administration to
"promulgate rules relating to caseloads for attorneys representing indigent clients in criminal
matters in cities of one million or more," and to formulate a phase-in plan for the court’s
response to the caseload problem.72 Although excessive workloads are cause for concern in both
the felony and misdemeanor context, individuals facing misdemeanor charges are more likely to
suffer the consequences of the workload strain. As one report noted, “Although national crime
rates have decreased and fewer major crimes are being committed, indigent defense providers
remain burdened with excessive caseloads consisting of all kinds of cases . . . including countless
minor, petty offense cases.”73 Thus, in Chicago, Atlanta, and Miami, defenders handle more than
2,000 misdemeanors a year,74 far above recommended maximum numbers.75 According to a
2007 Department of Justice study,
73 percent of county based public defender offices lacked enough attorneys to
meet these national caseload standards, while 23 percent of offices had less than
half of the necessary attorneys to meet caseload standards. Only 12 percent of
county public defender offices with more than 5,000 cases per year had enough
lawyers to meet caseload standards.76

use drugs more than any other group, and some studies have even found that they use them less.”); R OBERT C.
BORUCHOWITZ, AM. CONSTITUTION SOC'Y FOR LAW & POLICY, DIVERTING AND RECLASSIFYING MISDEMEANORS
COULD SAVE $1 BILLION PER YEAR: REDUCING THE NEED FOR AND COST OF APPOINTED COUNSEL 2-3 (2010)
[hereinafter DIVERTING AND RECLASSIFYING MISDEMEANORS] (citing Fed. Bureau of Investigation, Crime in the
United States, U.S. DEP’T OF JUSTICE (Sept. 2010), http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2009)
(noting 2009 FBI estimates that 45.6% of the 1,663,582 drug arrests in the United States were for possession of
marijuana). Full exploration of the race and class dynamics of the lower courts is beyond the scope of this Article.
71
See, e.g., State ex rel. Mo. Pub. Defender Com’n, 298 S.W.3d 870, 879-80 (Mo. 2009) (“[t]he excessive number
of cases to which the public defender’s offices currently are being assigned calls into question whether any public
defender is meeting his or her ethical duties of competent and diligent representation in all cases assigned.”); Donald
J. Farole, Jr. & Lynn Langton, A National Assessment of Public Defender Office Caseloads, 94 JUDICATURE 87
(2010) (concluding that the lack of personnel and resources across the country prevents the effective representation
of indigent defendants); David Carroll, Gideon Alert: DOJ Data Confirms Existence of Right to Workload Crisis in
the United States, NATIONAL LEGAL AID & DEFENDER ASSOCIATION (Sept. 17, 2010, 10:56 AM),
http://www.nlada.net/jseri/blog/gideon-alert-doj-data-confirms-existence-right-counsel-workload-crisis-united-states
(noting how recently published data by the Bureau of Justice Statistics confirm that public defenders are carrying
excessive workloads).
72
Steven Zeidman, Indigent Defense: Caseload Standards, N.Y. L.J., Mar. 24, 2010, at 6, available at
http://www.law.com/jsp/nylj/PubArticleNY.jsp?id=1202446663975&_Indigent_Defense_Caseload_Standards&slret
urn=1&hbxlogin=1; see also A00156B (2009).
73
Justice Denied America’s Continuing Neglect of our Constitutional Right to Counsel, THE CONSTITUTION
PROJECT, 72 (2009), [hereinafter “JUSTICE DENIED”], http://www.constitutionproject.org/pdf/139.pdf (citing FBI
crime statistics).
74
See MINOR CRIMES, MASSIVE WASTE, supra note 12, at 21.
75
See infra note 78 and accompanying text (discussing national caseload recommendations).
76
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In our high-volume criminal justice system, the lure of assembly-line justice — where defenders
fail to deliver even the most rudimentary services, such as investigation and appropriate client
counseling — is an unfortunate fixture in day-to-day representation in the lower courts.77
There is general acceptance that attorneys can handle more misdemeanors than felonies, and
there is thus widespread support for the National Advisory Commission on Criminal Justice
Standards and Goals’ recommendations of 400 non-traffic misdemeanors per year, with the
number dropping to 150 for felonies.78 These differing recommendations are likely due in part to
the reality of high numbers of misdemeanors in the criminal justice system, combined with the
reality of a limited pool of resources.79 The differing numbers are also undoubtedly due to the
fact that there can be little disagreement that an attorney handling a complex multi-count felony
indictment that exposes her client to decades in prison will require more time to prepare than an
attorney handling a misdemeanor assault with two witnesses and no medical records. It is not
troubling that attorneys assigned to both kinds of cases will devote more attention to clients
charged with the complex felony. What is troubling is that there are no constitutional, ethical, or
professional standards to guide attorneys in deciding how to divide that attention, and to ensure
that attorneys provide misdemeanor clients with effective representation.
As Professor Steve Zeidman noted in his commentary on caseload caps for public defenders,
“Numbers should not be the only, nor primary, way to assess defense attorney effectiveness.”80
Thus, even if there is agreement that attorneys can handle more misdemeanors than felonies as a
general matter, “There are many variables to consider in evaluating attorney workloads, including
the seriousness and complexity of assigned cases and the skill and experience of individual
attorneys.”81 For example, although it makes sense for new attorneys to begin with misdemeanors
before moving up to a felony practice, the skewed caseload recommendations mean that
77

See id. at 13; MINOR CRIMES, MASSIVE WASTE, supra note 12, at 12, 21-22.
See Statement on Caseloads and Workloads, supra note 39,at 3 (referencing National Advisory Commission on
Criminal Justice Standards and Goals recommendations of 150 felonies, 400 non-traffic misdemeanors, 200 juvenile
court cases, 200 Mental Health Act cases, or 25 non-capital appeals per attorney per year); see also ABA SPECIAL
COMM. ON CRIMINAL JUSTICE IN A FREE SOC’Y, CRIMINAL JUSTICE IN CRISIS: A REPORT TO THE AMERICAN PEOPLE
AND THE AMERICAN BAR ON CRIMINAL JUSTICE IN THE UNITED STATES (1988), available at
http://www.druglibrary.org/special/king/cjic.htm (stating that ABA endorses National Advisory Commission
(“NAC”) caseload numbers, although list following endorsement notes 300 misdemeanor cap rather than 400 as
NAC recommends); U.S. DEP’T OF JUSTICE PREPARED BY THE SPANGENBERG GROUP, Keeping Defender Workloads
Manageable, in BUREAU OF JUSTICE ASSISTANCE, INDIGENT DEFENSE SERIES 7-8 (Ser. No. NCJ 185632, 2001),
available at http://www.ncjrs.gov/pdffiles1/bja/185632.pdf (referencing National Advisory Council numbers, but
also noting the need to differentiate between caseloads and workloads). The Washington State Bar Association has
taken a more nuanced approach with its 2007 standards. On the issue of caseloads, the organization notes a
difference between “simple” and “complex” misdemeanors. Although the standards recommend a caseload of no
more than 300 misdemeanors, they recognize certain exceptions where caseloads might be adjusted to 400
misdemeanors. See WASH. STATE BAR ASS’N, STANDARDS FOR INDIGENT DEFENSE SERVICES, Standard 3 (adopted
Sept. 20, 2007), available at www.wsba.org/lawyers/groups/wsbastandards408.doc.
79
One study noted that “[i]n 2005 State court prosecutors reported closing over 2.4 million felony cases and nearly
7.5 million misdemeanor cases.” Steve W. Perry, Prosecutors in State Courts, in U.S. DEP’T OF JUSTICE, BUREAU OF
JUSTICE STATISTICS BULL. 6 (Ser. No. NCJ 213799, 2006), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/psc05.pdf. The actual difference between prosecuted misdemeanors and
felonies is even greater, as only 95% of all state prosecutors’ offices reported handling misdemeanor cases. Id. at 4,
tbl.5. County attorneys or perhaps police officers presumably prosecuted misdemeanors in the remaining five
percent of jurisdictions, or the court may have handled the disposition without any prosecutorial involvement.
80
Zeidman, supra note 72 (applauding New York State law calling for rules on public defender caseloads, but
cautioning that “[w]e must do more than zero in on caseloads”).
81
Statement on Caseloads and Workloads, supra note 39, at 2-3.
78

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attorneys new to criminal defense practice (and often right out of law school) will almost
immediately handle large numbers of cases. At the same time, these new attorneys must learn
basic pretrial and trial skills and familiarize themselves with the local lower criminal court
culture. In some jurisdictions, misdemeanor lawyers might find themselves moving between
several courtrooms, or even between different towns, in order to handle their assigned cases.82
These factors thus exacerbate the workload differences between misdemeanors and felonies.
While some felonies require more attorney time and attention than misdemeanors, this is not
always the case. As described below in section C, misdemeanor defenders handle a wide variety
of charges, some of which raise complex constitutional or statutory issues not often seen with
felony charges. Further, as described below in section B, collateral consequences loom larger in
misdemeanor cases, because they so often overshadow any potential direct criminal sentence.
Thus, there is greater need to counsel clients about the cost of such consequences compared to
the benefits of entering a guilty plea, and more room for creative plea-bargaining in order to
avoid unintended collateral consequences. This requires a working familiarity with a wide
variety of potential collateral consequences, and may require coordination with one or more
experts in the area of any relevant consequences in order to fully inform the misdemeanor
client.83
Given the ways in which misdemeanor representation requires a particular type of attention,
national recognition that misdemeanor defenders can handle far greater caseloads than felony
defenders, and the realities of assembly-line case processing in the lower courts, the need for
further guidance on the meaning of effective misdemeanor representation is clear. These
differences between felony and misdemeanor practice highlight the need for standards that are
unique to the misdemeanor context.
B. Minor Criminal Convictions Lead to Major Collateral Consequences
Mary Anne Gehris was adopted by an American couple when she was two weeks old.84 Her
parents did not make her a U.S. citizen, but Gehris herself later filed the necessary paperwork,
correctly noting a past criminal conviction. By that time, she was married to a U.S. citizen and
had a young son with cerebral palsy.85 Her effort to seek naturalization resulted in a deportation
order. The basis for her deportation was her ten-year-old misdemeanor battery conviction based
on allegations of fighting another woman over a man. On the advice of her attorney, she had
pled guilty to the charge and received a suspended sentence with probation.86 After extensive
publicity about her deportation order, the Georgia Board of Pardon and Parole granted her a
pardon, and immigration officials halted her deportation.87 Gehris was one of the lucky few.88
82

See id. at 4 (“Local court calendar management practices . . . can . . . play havoc with attorney workloads as can
legislative changes and new judicial decisions.”).
83
See Wright, supra note 53 at 1530-34.
84
See Stephen Davis, Deported from America, NEWSTATESMAN, Nov. 22, 2004, at 14-15, available at
http://www.newstatesman.com/200411220005.
85
Id.
86
See Lewis, supra note 50, at 13.
87
Davis, supra note 84, at 17. Gehris later became a U.S. citizen. See Anthony Lewis, Op-Ed., Abroad at Home:
Rays of Hope, N.Y. TIMES (Feb. 10, 2001), http://www.nytimes.com/2001/02/10/opinion/abroad-at-home-rays-ofhope.html.
88
MARGARET COLGATE LOVE, RELIEF FROM THE COLLATERAL CONSEQUENCES OF A CRIMINAL CONVICTION: A
STATE-BY-STATE RESOURCE GUIDE 5 (William S. Hein & Co. 2006), available at
http://www.sentencingproject.org/detail/publication.cfm?publication_id=115 (“In at least a dozen states where a

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Miguel Angel Hernandez, a lawful permanent resident, also had a misdemeanor battery
conviction in Georgia. He did not get a pardon, and the Eleventh Circuit Court of Appeals
denied his petition for review of his final order of deportation.89
Misdemeanor assault is not the only minor crime with such drastic consequences. Numerous
misdemeanor drug convictions can lead to automatic deportation for non-citizens. This is
because “[a]ny alien who at any time after admission has been convicted of a violation of (or a
conspiracy or attempt to violate) any law or regulation of a State, the United States, or a foreign
country relating to a controlled substance . . . other than a single offense involving possession for
one's own use of 30 grams or less of marijuana, is deportable.”90 Deportation is only one of
many serious collateral consequences of misdemeanor convictions.91 In many states, a number
of misdemeanor sex crime convictions can lead to mandatory, long-term sex offender
registration, and in some cases community notification via a publicly available electronic
database.92 A marijuana possession conviction will lead to the loss of federal student loan

governor’s pardon is the exclusive means of avoiding or mitigating collateral disabilities, the governor has not
exercised the power with any regularity for many years. The federal pardoning process has also withered in the past
twenty years, producing only a handful of grants despite a steady stream of applications from people who may long
since have completed their court-imposed sentences.").
89
Hernandez v. U.S. Att’y Gen., 513 F.3d 1336, 1339-40 (11th Cir. 2008) (finding that Georgia misdemeanor
battery statute met definition of “crime of violence” under federal immigration law so that Hernandez’s conviction
under the statute, combined with his suspended one-year sentence, rendered his conviction an automaticallydeportable “aggravated felony” under federal immigration law).
90
8 U.S.C. § 1227(a)(2)(B)(i) (2011); see also Gabriel J. Chin, Race, the War on Drugs, and the Collateral
Consequences of Criminal Conviction, 6 J. GENDER RACE & JUST. 253, 261 (2002).
91
These consequences are generally referred to as “collateral consequences” of a criminal conviction because they
are not imposed directly by the court as part of the sentence, but rather flow as a consequence of the conviction. See
Padilla v. Kentucky, 130 S. Ct. 1473, 1481 n.8 (2010) (recognizing that courts are split over distinguishing and
applying the distinction between direct and collateral consequences); see also Jenny Roberts, The Mythical Divide
Between Collateral and Direct Consequences of Criminal Convictions: Involuntary Commitment of “Sexually
Violent Predators,” 93 MINN. L. REV. 670, 689-92 (2008) (noting how courts have been inconsistent in categorizing
direct versus collateral consequences, and how consequently there is a confused jurisprudence in this area). This
Article uses the term “collateral” because it is still commonly used by courts and commentators. See Margaret
Colgate Love, Collateral Consequences after Padilla v. Kentucky: From Punishment to Regulation, 30 ST. LOUIS U.
PUB. L. REV. (forthcoming 2011) (manuscript at 4), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1883809 (“The term ‘collateral consequences’ has become a
commonplace way of describing the legal penalties and disabilities to which people are exposed when they plead
guilty to a crime, though the term ‘status-generated penalties’ might be more apt if not legally precise.”); see also
Brown v. United States, No. 10 Civ. 3012, 2010 WL 5313546, at *3 (E.D.N.Y. 2010); Margaret C. Love & Gabriel
J. Chin, Padilla v. Kentucky: The Right to Counsel and the Collateral Consequences of Conviction, 34 CHAMPION
18, 18 (2010). But see McGregor Smyth, From "Collateral" to "Integral": The Seismic Evolution of Padilla v.
Kentucky and its Impact on Penalties Beyond Deportation, 54 HOW. L.J. 795, 802 (2011) (noting how, in the wake
of Padilla v. Kentucky, 130 S.Ct. 1473 (2010), the already-problematic distinction between so-called collateral and
direct consequences is even weaker, and how the term “enmeshed penalty” would better reflect the fact that “these
penalties are intimately related to criminal charges (not just convictions), and are serious, often draconian, and
lifelong”); see also McGregor Smyth, Holistic Is Not a Bad Word: A Criminal Defense Attorney’s Guide to Using
Invisible Punishments as an Advocacy Strategy, 36 U. TOL. L. REV. 479, 479-80 (2005) (using term “invisible”
consequences).
92
See, e.g., N.Y. CORRECT. LAW § 168(a) (2011) (defining sex offender to include individuals convicted of certain
misdemeanors); N.Y. CORRECT. LAW §168(f) (2011) (requiring sex offenders to register); see also Adam Walsh
Child Protection & Safety Act of 2006, 42 U.S.C. § 16911(2). See generally KAREN J. TERRY & JOHN S. FURLONG,
SEX OFFENDER REGISTRATION AND COMMUNITY NOTIFICATION: A “MEGAN’S LAW” SOURCEBOOK (2d ed. 2006).

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assistance for at least a year.93 Low-level drug crime convictions can lead to eviction from
public housing for the individual and his entire family, even if he is not the leaseholder or even
living in the housing.94
The most pervasive collateral effect of a misdemeanor conviction is the ability to find and
keep work. There are a multitude of statutory and regulatory bars to employment at the local,
state, and federal levels for convicted persons. For example, in New York State a person with
certain misdemeanor convictions cannot work as a home health aide,95 and in Texas a number of
convictions block employment in any capacity at facilities serving the elderly, terminally ill, or
people with disabilities.96 In addition to formal restrictions, many employers take advantage of
electronic access to these records and use the information to avoid hiring anyone with any type
of criminal record, even if there is no connection between that conviction and the type of work. 97
“I’ve come to expect being turned down,” is how Justin Gannon described his ongoing
search for a job.98 He had several job offers, all later rescinded. Despite his eight years of Army
National Guard service, leading to a drawer full of medals for meritorious service and a 2009
honorable discharge certification, he is among the sixteen percent of Ohioans — 1.9 million
people — with a criminal conviction. He was convicted of misdemeanor assault in 2003 after a
bar fight, and says that he pled guilty because he was scared of going to jail and because he was
“told the misdemeanor wouldn’t be that big of a deal on my record.” Mr. Gannon is not alone, as
there were 258,000 new misdemeanor convictions in 2008 in Ohio.99
The large number and harsh nature of collateral consequences illustrate how even a low-level
conviction that seems to begin with arrest and end in front of the judge can actually have an
impact not only on that person’s life, but also on the lives of family members and the person’s
community. For example, an NAACP Legal Defense Fund survey of thirty women incarcerated
for nonviolent offenses, designed to document “social costs” of Mississippi’s poor quality public
93

20 U.S.C. § 1091(r)(1) (2003) (suspending student loan eligibility for varying time periods for any “student who is
convicted of any offense under any Federal or State law involving the possession or sale of a controlled substance
for conduct that occurred during a period of enrollment for which the student was receiving any grant, loan, or work
assistance”). But see id. § 1091(r)(2) (allowing for resumption of loan assistance upon a showing of
“rehabilitation”).
94
See 42 U.S.C. § 1437d(l)(6) (2011) (allowing for the eviction of a tenant in federal housing where the tenant, a
member of the tenant’s household, or a guest of the tenant is convicted of, or involved with, drug-related activity,
even if tenant lacks knowledge of that activity); Dep’t of Hous. & Urb. Dev. v. Rucker, 535 U.S. 125, 128 (2002)
(upholding the eviction of grandparent tenants under 42 U.S.C. § 1437 based on drug activity on public housing
grounds, including tenants’ grandsons smoking marijuana in the apartment complex parking lot).
95
N.Y. EXEC. LAW § 845-b(5)(b) (McKinney 2011).
96
TEX. HEALTH & SAFETY CODE ANN. § 250.006 (West 2007) (listing numerous criminal convictions that are a
permanent or five-year bar to employment in facilities serving the elderly, terminally ill, or people with disabilities).
97
Many states have human rights or other state laws prohibiting employers from discriminating against individuals
with criminal records unless there is a legitimate connection to the type of work. See, e.g., N.Y. CORRECT. LAW §
752 (McKinney 2011) (banning unfair licensure or employment discrimination against persons convicted of one or
more crimes); N.Y. EXEC. LAW § 296(15)-(16) (McKinney 2011) (making it unlawful to inquire about, or deny a
license or employment to any person with past convictions). However, the efficacy of such laws is open to question
and their enforcement mechanisms — many largely rely on private enforcement through individual complaints —
leaves something to be desired.
98
Mary McCarty, Criminal Records Keeping Millions of Ohioans Jobless, DAYTON DAILY NEWS (June 25, 2011,
7:16 PM), http://www.daytondailynews.com/news/crime/criminal-records-keeping-millions-of-ohioans-jobless1193628.html.
99
Id. (noting numbers provided by Ed Rhine, deputy director for Ohio’s office of offender re-entry, who also noted
how marking the box on job application that ask about convictions is “[i]n most cases . . . sufficient to get that
application tossed out”).

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defense system, “found that nearly half of the women lost a home or apartment, while 12 lost
vehicles. More than half of the women had children living with them when they were arrested
and had to move in with relatives. Eight women had elderly parents who were affected
financially.”100 These examples demonstrate how misdemeanor convictions can negatively affect
a person’s ability to be a productive member of society and, therefore, should be cause for
serious concern.101 This is especially true where large percentages of individuals in a particular
community have criminal convictions. The public safety effect on a community when many
members are incarcerated or unable to find work because of a minor conviction cannot be
underestimated in a cost-benefit analysis of low-level prosecutions.102
The re-entry movement has brought attention to “[o]ne of the most profound challenges
facing American society”103 — the reintegration of the more than 700,000 adults exiting state
and federal prisons each year into their communities.104 The movement’s focus has largely been
on this prison-to-community transition, recognizing the critical link between recidivism, public
safety, and the ability to work past significant obstacles in order to successfully function after
leaving prison.105 Re-entry from incarceration also affects large numbers of individuals, their
families, and their communities.106 Similarly, some of the sociological literature argues that the
social costs of incarceration actually work against crime prevention.107 To be sure, this is
important work in an area that was largely previously ignored.
However, the collateral effects of minor convictions are to some extent lost in this analysis.
The very fact of a conviction — even without any jail time — can lead to many of the same
100

See SYSTEM OVERLOAD, supra note 24, at 18.
Indeed, it is hard to justify the effects of many misdemeanor convictions under traditional theories of punishment
if the collateral consequences are factored into the equation. An important, related front in this area is to incorporate
the consideration of third party interests into general criminal law theories of punishment. See Daryl K. Brown,
Third Party Interests, 80 TEX. L. REV. 1383, 1408-20 (2002). Taking the collateral consequences that criminal
prosecutions cause to innocent third parties (families, communities) into account in our theoretical construct for the
criminal justice system means moving beyond strict retributivist or deterrence theories — or even theories that
combine these two dominant strains — to include a consideration of third party interests. See generally DIEDRE
GOLASH, THE CASE AGAINST PUNISHMENT: RETRIBUTION, CRIME PREVENTION, AND THE LAW 23 (2005) (pointing
out that cost-benefit analyses of punishment theories usually ignore the cost of harm to the person punished).
102
See SYSTEM OVERLOAD, supra note 39, at 2 (“Families are torn apart when a loved one is sent to prison or can no
longer work due to the collateral consequences of a conviction. Communities suffer both in terms of public safety
and through unnecessarily losing friends, neighbors and co-workers who are locked up.”).
103
JOAN PETERSILIA, WHEN PRISONERS COME HOME 3 (2003); see also Jeremy Travis, But They All Come Back:
Rethinking Prisoner Reentry, 5(3) CORRECTIONS MGMT. Q. 23 (2001).
104
Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85
N.Y.U. L. REV. 457, 459 (2010). As a general matter, misdemeanor sentences involving incarceration are served in
jails and longer felony sentences in prisons. See 24 C.J.S. Criminal Law § 2189 (2010) (“Broadly speaking, felonies
are punishable by imprisonment in a penitentiary or state prison, and misdemeanors by imprisonment in a county jail
or the like.”)
105
See generally PETERSILIA, supra note 103 (noting the ineffectiveness of the current re-entry programs and
proposing solutions to improve it).
106
Id. at 223-28.
107
See, e.g., John Braithwaite, Inequality and Republican Criminology, in CRIME AND INEQUALITY 277, 283-84
(John Hagan & Ruth D. Peterson eds., 1995) (arguing that family and social networks work better for crime control
than criminal sanctions); Jeffrey Fagan & Tracey L. Meares, Punishment, Deterrence and Social Control: The
Paradox of Punishment in Minority Communities, 6 OHIO ST. J. CRIM. L. 173 (2008) (explaining how imprisonment
may have criminogenic rather than deterrent effects); John H. Laub & Robert J. Sampson, Understanding
Desistance from Crime, in 28 CRIME & JUST. 1, 44-45 (Michael Tonry ed., 2001) (arguing that a “life-course
account” can explain the desistance of criminal offenders, that changes in criminality are caused by variations in
information social control and bonds, and that salient life events such as work and marriage affect these bonds).
101

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social effects described in these studies.108 Yet there has not been sufficient focus on the effects
of the massive number of newly-minted “misdemeanants” coming from a trip to the courthouse
each year. An individual who is fully informed about such things as deportation, bars to
employment, or getting kicked out of public housing because of a misdemeanor conviction will
be focused on avoiding any conviction that would lead to collateral consequences most relevant
to that particular individual. Thus, a primary focus of misdemeanor defenders, and the
institutions that set standards for effective representation, should also be the high collateral costs
of lower court convictions. In this light, standards for the type and quality of misdemeanor
defense counsel assistance is critical and may be different from standards in serious felony cases.
There are a variety of potential reforms that might ameliorate counterproductive and unjustly
severe collateral consequences. These include decriminalization of certain low-level offenses,109
prosecutorial discretion in charging and plea-bargaining to avoid unintended collateral
consequences, additional resources for the reintegration of those with convictions,110 and public
education campaigns so that employers, landlords, and others are willing to give individuals with
convictions a chance.111 These are important ideas, all worthy of further attention. To the extent
that they focus on remediation at the front end of a potential criminal case, such as
decriminalization or the exercise of charging discretion, they confront the problem of overloaded
defender systems as well as the effect of minor convictions on individuals, families, and
communities. Still, they do not directly address the problem of defining appropriate standards
for delivery of the right to counsel in misdemeanor cases that go forward. Such standards are
critical to ensuring that justice inheres in the process itself, so that the many individuals in the
misdemeanor system do not receive unwarranted convictions or overly-harsh sentences.
C. Complexities of Misdemeanor Practice
Although misdemeanors are the usual training ground for new attorneys, they can also be just
as complicated as typical felony cases. Like felonies, misdemeanor cases raise issues of
suppression in drug and weapons cases,112 expert testimony in drug, assault, and drunk driving
cases,113 and Crawford/Confrontation Clause issues in domestic violence and other types of
cases.114 Therefore, attorneys handling misdemeanor cases grapple with many of the same legal
108

See Pager, supra note 46, at 960-62; see also MARK MAUER, THE SENTENCING PROJECT, RACE TO INCARCERATE
6-7, 13 (2d ed. 2006) (arguing that our criminal justice system is stuck in a punitive response mode even though
neighborhoods are perceived as “safe” when they are clean, well-lit, and have open businesses, not when they are
heavily policed or have the death penalty).
109
See infra Part III.A; see also Abel, supra note 232, at B6.
110
For an example of some such resources, see generally REENTRY.NET, http://www.reentry.net (last visited Oct. 19,
2011).
111
See Sample Letters to Employers, REENTRY.NET, http://www.reentry.net/ny/library/folder.83212Sample_Letters_to_Employers (last visited Oct. 19, 2011) (offering sample letters educating employers about the
employment rights of people with criminal records).
112
See, e.g., State v. Remy, No. 02CA2664, 2003 WL 21152881, at *2-3 (Ohio Ct. App. Mar. 25, 2003) (denying
motion to suppress crack pipe in misdemeanor possession of drug paraphernalia); Russell v. State, 74 S.W.3d 887
(Tex. Ct. App. 2002) (denying motion to suppress evidence in misdemeanor marijuana possession case on grounds
that reasonable suspicion is not required for a school search).
113
See, e.g., State v. McClain, 301 S.W. 3d 97, 98 (Mo. Ct. App. 2010) (noting that expert testified as to weight of
marijuana in grams because weight determines whether a person is guilty of misdemeanor or felony under Missouri
state law).
114
See Davis v. Washington, 547 U.S. 813, 814, 828 (2006) (finding that victim’s statements that identified her
assailant during 911 call were not “testimonial” for purposes of Confrontation Clause because they were made to get

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issues as felony attorneys. Proper representation on these issues requires the same skills in
interviewing and counseling the client, negotiating with the prosecution, and conducting factual
investigation and legal research.
Beyond these commonalities, misdemeanor lawyers sometimes encounter complex
constitutional issues that are not found as frequently in the felony arena. For example, public
order offenses such as disorderly conduct or unlawful assembly often implicate free speech,
overbreadth, and vagueness issues.115 As the Supreme Court noted:
We are by no means convinced that legal and constitutional questions involved in
a case that actually leads to imprisonment even for a brief period are any less
complex than when a person can be sent off for six months or more. The trial of
vagrancy cases is illustrative. While only brief sentences of imprisonment may be
imposed, the cases often bristle with thorny constitutional questions.116
Misdemeanor lawyers would raise such constitutional issues in pretrial motion practice, such as
in a motion to dismiss a charging document as facially unconstitutional based on the vague and
overbroad nature of the underlying criminal charge.117 Misdemeanor lawyers might also engage
in pretrial litigation about the sufficiency of a charging document because misdemeanors
normally proceed upon an accusatory instrument — which is essentially an affidavit noting the
crimes charged and basic factual allegations, signed by a police officer, prosecutor, or
complaining witness — rather than a grand jury indictment or a preliminary hearing.118
Misdemeanor attorneys with overwhelming workloads will lack the time necessary to litigate
these important issues. This is particularly troubling in an era of sharply rising misdemeanor and
steeply declining felony prosecutions, and enormous growth in the numbers of collateral
consequences of misdemeanor convictions.119 Challenges to problematic public order offenses,
or to a prosecution office practice of insufficient notice to defendants in charging documents, are
critical where elected officials’ or legislators’ beliefs about the need to be “tough on crime” can
eclipse other considerations relevant to public safety and fairness in the administration of
criminal justice.120
In addition to the potential for complex pretrial motions, misdemeanor attorneys often handle
a large variety of crimes, codified in a variety of sources. A misdemeanor attorney might
simultaneously handle cases from the state penal law, such as drug possession, theft, assault, or
domestic violence,121 from the traffic code, such as driving with a suspended license, and from
help for immediate physical threat); Crawford v. Washington, 541 U.S. 36, 54 (2004) (holding that out-of-court
“testimonial” statements are inadmissible under the Confrontation Clause unless the declarant is unavailable to
testify and the accused has had a prior opportunity to cross-examine).
115
See, e.g., People v. Biltsted, 574 N.Y.S.2d 272, 278 (N.Y. Crim. Ct. 1991) (finding criminal law banning
unlawful assembly is not vague, overbroad, or unconstitutional where the actions of the individual charged
“constitute an incitement which is both directed towards and likely to produce imminent violent and tumultuous
conduct”).
116
Argersinger v. Hamlin, 407 U.S. 25, 33 (1972) (internal citations omitted).
117
See Bilsted, 574 N.Y.S.2d at 273-74.
118
See, e.g., People v. Casey, 740 N.E.2d 233 (N.Y. 2000) (affirming denial of defendant’s motion to dismiss, and
setting forth the sufficiency requirements of a charging document in misdemeanor cases); see also N.Y. CRIM. PROC.
LAW § 1.20 (McKinney 2011) (defining “accusatory instrument”).
119
See supra notes 10-16 and accompanying text (describing rising misdemeanor prosecutions and falling felonies)
and Part I.B. (describing collateral consequences of minor criminal convictions).
120
See infra note 241 and accompanying text.
121
See, e.g., M.D. CODE ANN. CRIM. LAW § 5-601 (West 2011); see also Table 30: County Court Misdemeanor
Filings by Type, FY 2008, COLORADO STATE JUDICIAL BRANCH,

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the local administrative code, such as unlicensed general vending or sale of a weapon without a
safety-locking device.122 By contrast, felony counsel may have a more limited variety of cases,
particularly when the jurisdiction has a heavy number of felony drug prosecutions.123 When
counsel handles one type of case in great volume — for example drug sales, where the main
witnesses are undercover or other police officers who may refuse to speak with defense counsel,
thus limiting the potential for investigation on the case — that defender will have fewer pre-trial
tasks than in some misdemeanor cases.
The many facets of misdemeanor advocacy provide excellent training for new attorneys, but
it would demonstrate ignorance of the true nature of misdemeanor practice to say that it is always
easier, less complex work.124 The consequences — at least the direct, penal consequences —
may be lower, but the work can be just as challenging as the majority of felony prosecutions in a
typical jurisdiction.
D. Coercion and Plea Bargaining in the Misdemeanor Context
Judges, practitioners, and scholars have all long acknowledged the potential for, and
existence of, coercion in the plea bargain process.125 These concerns focus on the disparity
between the offered sentence and the higher sentence that a defendant will receive should he lose
at trial.126 Although the limited amount of possible jail time narrows this disparity in the
http://www.courts.state.co.us/userfiles/File/Administration/Planning_and_Analysis/Annual_Statistical_Reports/200
8/Table30.pdf (last visited March 8, 2011) (indicating that domestic violence crimes accounted for 18% of Colorado
misdemeanor filings in 2008).
122
See, e.g., N.Y. ADMIN. CODE § 20-472 (McKinney 2004) (making the crime of unlicensed general vending “a
misdemeanor punishable by a fine of not less than two hundred fifty dollars nor more than one thousand dollars, or
by imprisonment for not more than three months or by both such fine and imprisonment"); N.Y.C., N.Y., CODE §
10-311 (2010) (making it a misdemeanor, punishable by up to 90 days in jail, a $500 fine, or both, “for any person
or business enterprise to dispose of any weapon which does not contain a safety locking device”).
123
For example, felony drug arrests accounted for 39,435 out of 124,111 total felonies in Los Angeles County in
2008. Adult Felony Arrests, 2008, Offense by Jurisdiction and Gender, CAL. ST. DEP’T JUST,
http://stats.doj.ca.gov/cjsc_stats/prof08/19/15.htm (last visited Mar. 6, 2011). Between 1994 and 2006, drug charges
comprised the largest group of felony cases in the 75 largest counties, ranging from 34% to 37% of total felony
cases. Thomas Cohen & Tracey Kyckelhahn, Felony Defendants in Large Urban Counties, in U.S. DEP’T OF
JUSTICE, BUREAU OF JUSTICE STATISTICS BULL. 2 (Ser. No. NCJ 228944, 2006), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/fdluc06.pdf.
124
Clearly there are felony cases that are far more complex than any misdemeanor. Death penalty cases are one
example, as are homicide or other cases involving forensic issues. However, these cases do not comprise the
majority of the caseload of a typical felony attorney. See Cohen & Kyckelhahn, supra note 123 at 2(noting how drug
charges were the largest group of felony cases in the 75 largest counties between 1994 and 2006).
125

See, e.g., Albert W. Alschuler, The Changing Plea Bargaining Debate, 69 CALIF. L. REV 652, 687-89 (1981) (
describing the potential coercive effects of plea bargaining); Richard Klein, Due Process Denied: Judicial
Cooperation in the Plea Bargaining Process, 32 HOFSTRA L. REV. 1349 (2004) ( describing the coercive powers
that judges may exert on defendants during the plea bargaining process); Stephen J. Schulhofer, Is Plea Bargaining
Inevitable, 97 HARV. L. REV. 1037, 1060-62 (1984) (listing possible inducement to plead guilty when no significant
concessions were granted). The potential for coercion actually applies to the guilty plea process more broadly,
bargain or no bargain, since in most instances the judge gives the defendant a significant sentence discount if he
pleads guilty to all charges prior to trial.
126
See, e.g., Frank Easterbrook, Plea Bargaining as Compromise, 101 YALE L. J. 1969, 1975 (1992) (explaining
how defendants balance the benefits against the drawbacks of accepting the proposed plea); Candace McCoy, Plea
Bargaining as Coercion: The Trial Penalty and Plea Bargaining Reform, 50 CRIM. L.Q. 67, 87-88 (2005) (arguing
that there is a significant difference between the sentences imposed after a guilty plea and those imposed after trial).

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misdemeanor context, there are structural features of the lower courts that raise troubling — and
often overlooked — issues of coercion in minor cases. As the Supreme Court has noted, “the
volume of misdemeanor cases, far greater in number than felony prosecutions, may create an
obsession for speedy dispositions, regardless of the fairness of the result.”127
With such a high volume of misdemeanors and other minor cases, judges, defense counsel,
and prosecutors all have enormous incentive to pursue early guilty pleas — as early as the initial
arraignment in some jurisdictions.128 There is serious institutional pressure from all quarters to
quickly “dispose of” misdemeanor cases, often before defense counsel can undertake any
investigation or adequately review any discovery material.129 A study for New York State’s
then-high court Chief Judge revealed that by the year 2000 in New York City, private attorneys
representing indigent defendants through an assigned-counsel plan “were disposing of 69 percent
of all misdemeanor cases at arraignment.”130 The same study described how the Legal Aid
Society, New York City’s largest provider of indigent defense services, had “permanent
arraignment lawyers who . . . only take misdemeanor arraignments and . . . ‘know the going rate
of a case’ on misdemeanors and violations and therefore try to take only those cases that can be
disposed of at arraignment.”131
One might argue that this early plea system is often beneficial to the defendant, who gets a
good bargain without returning to court many times in exchange for his prompt decision to plead
guilty.132 Although it is certainly true that some defendants (those with lengthy criminal records)
benefit from this type of system, many defendants do not gain much from such a process. They
may feel enormous pressure from all sides to enter a quick guilty plea. In addition, although
quick and early guilty pleas are encouraged in part to free up scarce resources in order to focus
on more “serious” cases, the fact remains that pleas in this environment are often taken without
much assistance of counsel at all. For example, counsel focused on moving misdemeanors along
quickly, with a goal of clients taking pleas at the first appearance, would be hard-pressed to
fulfill her ethical and constitutional duties to counsel clients about collateral consequences of any
guilty plea.133 In one particularly egregious case of pressure to plead guilty early (and to waive
counsel), defendants in a Broward County, Florida courtroom were handed a form explaining
how the fee for court-appointed attorneys was $50 for a plea entered at arraignment, and $350
for a plea after arraignment.134 The same study that detailed the Broward County form, a study

Cf. Stephanos Bibas, Plea Bargaining Outside the Shadow of Trial, 117 HARV. L. REV. 2463, 2470-96 (2004)
(noting institutional features of criminal justice system that lead to atmosphere that can coerce guilty pleas).
127
Argersinger v. Hamlin, 407 U.S. 25, 34-35 (1972).
128
See SYSTEM OVERLOAD, supra note 24, at 13 (“In many jurisdictions across the country defenders meet with their
clients minutes before their court appearance in courthouse hallways, often just presenting an offer for a plea bargain
from the prosecution without ever conducting an investigation into the facts of the case or the individual
circumstances of the client.”).
129
See Zeidman, supra note 27 at 331 n. 86 (stating that there should be no pleas at arraignment).
130
Status of Indigent Defense in New York: A Study for Chief Judge Kaye’s Commission on the Future of Indigent
Defense Services, THE SPANGENBERG GROUP, 142 (2006), http://www.courts.state.ny.us/ip/indigentdefensecommission/SpangenbergGroupReport.pdf [hereinafter “Spangenberg Study”].
131
Id. at 144.
132
See generally Robert E. Scott & William J. Stuntz, Plea Bargaining as Contract, 101 YALE L.J. 1909 (1992)
(praising autonomy and efficiency aspects of plea bargaining).
133
See Padilla v. Kentucky, 130 S. Ct. 1473 (2010) (articulating counsel’s duty to warn about deportation); see also
ABA, STANDARDS FOR CRIMINAL JUSTICE § 19-2.3 (3d ed. 2004).
134
See THREE-MINUTE JUSTICE, supra note 2, at 18, app.C.

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that involved 1,649 misdemeanor adjudications in twenty-one Florida counties, showed that
“[a]lmost 70% of defendants observed entered a guilty or no contest plea at arraignment.” 135
Perhaps the most coercive aspect of plea-bargaining in the lower criminal courts is pretrial
detention for individuals held on bail that they cannot pay.136 In such cases, defendants must
generally choose between remaining in jail to fight the case or taking an early plea with a
sentence of time served or probation. In the Florida study, the “most significant predictor of
defendants entering a plea of guilty or no contest at arraignment was their custody status. Incustody defendants were more likely to enter a guilty plea than released defendants.” 137
Incarcerated individuals will find it difficult to ignore the call of immediate freedom, particularly
if the person is unaware of the myriad collateral consequences of the guilty plea and thus does
not factor these consequences into the cost-benefit analysis of an immediate guilty plea.138
With misdemeanors, the problem of coercion resulting from the system’s structure, including
one’s own defense counsel, is thus paramount. There is little guidance for defense counsel, or
any other institutional actor, on where the line between coercion and advice lies in the lower
courts.139 The incentive structure that encourages coercion, and the real presence of such
coercion in some instances, demonstrates why guidance on effective assistance in misdemeanor
cases is so important.
II.

Lack of Guidance on the Meaning of Effective Assistance of Counsel for
Misdemeanors.

If misdemeanor cases are important enough to prosecute, then they are important enough to
analyze in terms of the appropriate level of representation. The message to society in
prosecuting individuals in these cases is that they matter and it is important to hold people
accountable for such conduct. Whether or not one agrees with that message, a concomitant
message should be that those charged with such offenses get a lawyer who does an effective job.
In addition to upholding the constitutional right to such representation, there are a number of
reasons to ensure effective misdemeanor representation.
For a number of cases, an overburdened or incompetent misdemeanor lawyer could get the
same result as a committed, well-resourced public defender or high-quality private counsel. For
example, a prosecutor may routinely offer some type of deferred dismissal in all first-arrest
shoplifting cases, and anyone with an attorney will get this same offer.140 The experienced
defender might knock a few hours of community service off of the requirements for the
135

Id. at 14-15. A “no contest,” or nolo contendere, plea is when “a defendant does not expressly admit his guilt, but
nonetheless waives his right to a trial and authorizes the court for purposes of the case to treat him as if he were
guilty.” North Carolina v. Alford, 400 U.S. 25, 35 (1970).
136
See Bibas, supra note 129, at 2491-93.
137
THREE-MINUTE JUSTICE, supra note 2 at 15.
138
See Jenny Roberts, Proving Prejudice, Post-Padilla, 54 HOW. L. J. 693, 725-28 (2011) (noting how full
information about the serious collateral consequences of a criminal conviction will factor into a defendant’s
decision-making process about whether to plead guilty or go to trial).
139
See generally Steven Zeidman, To Plead or Not to Plead: Effective Assistance and Client-Centered Counseling,
39 B.C. L. REV. 841, 888 (1998) (discussing the continuum of approaches when counseling a client about a guilty
plea, ranging from neutrality to urging).
140
Based on my own experience in the lower courts of several different jurisdictions, prosecutors do not make the
same “standard” offers to defendants proceeding pro se. Prosecutors will often first – and sometimes only – present
pro se defendants with the option to plead guilty to the crime or crimes charged (in situations where a defendant
represented by counsel would receive a more generous offer).

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dismissal, but the results are basically the same for that defender and the lawyer who simply
conveys the prosecution’s offer to her client without any negotiation over terms. However, many
low-level cases are not so simple, and do not result in dismissal for the asking. In addition, in a
significant number of cases with quality public or private representation, counsel might uncover
something during the investigation or client interviewing and counseling process that will make a
difference.
From a procedural justice perspective, recent research has demonstrated the importance of
fair treatment if we want defendants, their families, and their communities to have more faith in
and respect for the criminal justice system.141 Surely the quality of one’s counsel must play a
large role in these perceptions of legitimacy – or lack thereof.142
What, then, is the current state of the law on effective assistance of counsel, and what
professional standards govern, in the misdemeanor context? The short answer is that these
guideposts do not seem to exist. There is no developed body of case law or professional
standards that address the meaning of the right to effective assistance of counsel in the specific
context of misdemeanors and other low-level adjudications.

A. The Threshold Issue of the Right to Counsel in Misdemeanor Cases
As a threshold matter, it is important to note that the Sixth Amendment right to counsel does
not apply to all misdemeanors. Generally, the Sixth Amendment confers the right to statefunded counsel for indigent defendants.143 Before 1972, the Court’s right-to-counsel
jurisprudence derived exclusively from felony cases, and some lower courts explicitly placed
“petty offenses” outside the scope of the Sixth Amendment.144 Since that time, the ArgersingerScott-Shelton troika of Supreme Court decisions has set forth the contours for the right to counsel
in non-felony cases, finding that any imposed or suspended sentence of incarceration triggers the
right to counsel.145 Under these constitutional standards governing the scope of the Sixth
141

See, e.g., TOM R. TYLER, WHY PEOPLE OBEY THE LAW 6-7, 115-57 (1990).
See, e.g., NATIONAL SYMPOSIUM ON INDIGENT DEFENSE, IMPROVING CRIMINAL JUSTICE SYSTEMS THROUGH
EXPANDED STRATEGIES AND INNOVATIVE COLLABORATIONS, U.S. DEP’T OF JUSTICE ix (Feb. 1999),
www.sado.org/fees/icjs.pdf ("Ultimately, as Attorney General Janet Reno states, the lack of competent, vigorous
legal representation for indigent defendants calls into question the legitimacy of criminal convictions and the
integrity of the criminal justice system as a whole.").
143
See U.S. CONST. amend. VI (“[I]n all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.”); Gideon v. Wainwright, 372 U.S. 335, 340 (1963) (under Sixth
Amendment, applicable to states through Fourteenth Amendment, state courts must appoint counsel to individuals
who cannot afford to hire private counsel); Powell v. Alabama, 287 U.S. 45, 71 (1932) (in a capital case, where the
defendant is unable to employ counsel . . . it is the duty of the court, whether requested or not, to assign counsel for
him as a necessary requisite of due process of law”).
144
See WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE §11.2(a) (5th. ed. 2009). This is in stark contrast to the
British common law history of the right to counsel. “Originally, in England, a person charged with treason or felony
was denied the aid of counsel, except in respect of legal questions which the accused himself might suggest. At the
same time parties in civil cases and persons accused of misdemeanors were entitled to the full assistance of
counsel.” Powell, 287 U.S. at 61. This rule was “constantly, vigorously, and sometimes passionately assailed by
English statesmen and lawyers,” and ultimately “rejected by the colonies.” Id. at 60-61; see also Scott v. Illinois,
440 U.S. 367, 372 (1979) (noting how pre–Sixth Amendment common law “perversely gave less in the way of right
to counsel to accused felons than to those accused of misdemeanors”).
145
Alabama v. Shelton, 535 U.S. 654, 662 (2002) (finding that the Sixth Amendment bars imposition of suspended
sentence when underlying sentence followed an “uncounseled conviction”); Scott, 440 U.S. at 371-373 (1979) (no
142

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Amendment, some individuals charged with misdemeanor offenses enjoy the right to appointed
counsel, and others do not.
The right to misdemeanor counsel is a restraint on a judge’s ability to impose any sentence of
incarceration when a defendant was convicted without counsel or, alternatively, a valid waiver of
the right to counsel.146 This ex post approach does not consider the possible sentences listed in
the statute under which an individual is charged. Nor is it an affirmative directive to judges
determining when they should appoint counsel in a particular case. Rather, the state can forgo
appointing counsel in a misdemeanor case only if the judge is willing to forgo any potential for a
sentence involving actual or suspended incarceration.147
Many states extend the guarantee of counsel beyond the federal floor, with some states
making it available any time the relevant criminal statute in a case authorizes the judge to impose
a sentence of imprisonment, regardless of the actual sentence imposed.148 Unfortunately, recent
studies describe how some jurisdictions fail — or even purposely refuse — to comply with either
the Argersinger line of cases or their own more rigorous state rule. For example, a Bureau of
Justice report found that twenty-eight percent of jail inmates charged with misdemeanors stated,
when interviewed, that they had no counsel.149 Such judicial disrespect for the rules governing
right to counsel for sentence of fine); Argersinger v. Hamlin, 407 U.S. 25, 36 (1972) (“We hold, therefore, that
absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty,
misdemeanor, or felony, unless he was represented by counsel at his trial.”). .
146
See Shelton, 535 U.S. at 662 (“Where the State provides no counsel to an indigent defendant, does the Sixth
Amendment permit activation of a suspended sentence upon the defendant's violation of the terms of probation? We
conclude that it does not."); see also id. at 664 (restating Argersinger's command that “no person may be imprisoned
for any offense . . . unless he was represented by counsel at his trial”).
147
Thus, in Shelton the Supreme Court affirmed the judgment of the Alabama Supreme Court, which had affirmed
Shelton’s underlying misdemeanor assault conviction as well as that part of the sentence imposing a fine, but had
vacated that part of his sentence imposing probation attached to a suspended jail sentence. Id. at 659, 674; see also
id. at 671 (noting how “[a]lthough they may not attach probation to an imposed and suspended prison sentence,
States unable or unwilling routinely to provide appointed counsel to misdemeanants in Shelton's situation are not
without recourse to another option capable of yielding a similar result,” and describing the alternative option of
pretrial probation for uncounseled misdemeanors). Similarly, the Court in Scott upheld the underlying conviction
because, even though incarceration was a potential penalty for the misdemeanor theft charge in that case, the trial
court imposed only a fine. Scott, 440 U.S. at 373-74 (“We therefore hold that the Sixth and Fourteenth Amendments
to the United States Constitution require only that no indigent criminal defendant be sentenced to a term of
imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense.”).
148
See Shelton, 535 U.S. at 668 (2002) (“Most jurisdictions already provide a state-law right to appointed counsel
more generous than that afforded by the Federal Constitution.”). There are two ways a state can expand upon the
federal standard for the right to counsel: the state high court can declare a more stringent standard as a matter of
state constitutional law, or the state legislature can pass a statute granting the greater right. See, e.g., B. Mitchell
Simpson, A Fair Trial: Are Indigents Charged With Misdemeanors Entitled to Court Appointed Counsel?, 5 ROGER
WILLIAMS U. L. REV. 417, 426 (2000) (surveying varying state laws on appointment of misdemeanor counsel and
noting that 36 states expand upon the Argersinger right in various iterations). As of 2001, “All but 16 States . . .
would provide counsel to a defendant . . . either because he received a substantial fine or because state law
authorized incarceration for the charged offense or provided for a maximum prison term of one year.” Shelton, 535
U.S. at 668-69 (citing relevant examples from cases and statutes in various states).
149
See, e.g., MINOR CRIMES, MASSIVE WASTE, supra note 13, at 14 (citing Caroline Wolf Harlow, Defense Counsel
in Criminal Cases, in U.S. DEPT’ OF JUSTICE, BUREAU OF JUSTICE STATISTICS SPECIAL REPORT (Ser. No. NCJ
179023, 2000), available at http://bjs.ojp.usdoj.gov/content/pub/ascii/dccc.txt). But see id. at 15 (noting that
NACDL’s own site visits for its misdemeanor report suggest that the correct percentage is even higher). The ABA
has also documented the widespread failure to provide counsel in misdemeanor cases. See GIDEON’S BROKEN
PROMISE, supra note 18, at 22-23; see also Spangenberg Study, supra note 130, at 86-88 (describing how
misdemeanor guilty pleas are taken in New York State’s town and village courts without the presence of counsel).

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the right to counsel is starkly illustrated by the South Carolina Supreme Court Chief Justice’s
statement at that state’s public bar association meeting:
Alabama v. Shelton is one of the more misguided decisions of the United States
Supreme Court, I must say. If we adhered to it in South Carolina we would have
the right to counsel probably . . . by dragooning lawyers out of their law offices to
take these cases in every magistrate’s court in South Carolina, and I have simply
told my magistrates that we just don’t have the resources to do that. So I will tell
you straight up that we [are] not adhering to Alabama v. Shelton in every
situation.”150
As the overwhelming majority of all prosecutions are misdemeanors, both rules and practice
in this area play a large role in the experience of individuals in the criminal justice system. 151
Indeed, they determine who is and who is not entitled to counsel, as well as whether those
entitled actually get counsel. It is clear that, at least in some jurisdictions, even those entitled to
counsel in misdemeanor cases do not always get to exercise that right. Obviously, the
appointment of counsel for all individuals qualifying for misdemeanor representation is a
necessary predicate to any examination of the meaning of effective counsel in those cases.
Studies have explored some potential remedies for the serious problem of such outright denial of
the right to counsel.152 This Article moves beyond this baseline issue to explore the type of
misdemeanor assistance the Constitution guarantees.
B. The Failure to Define Effective Misdemeanor Lawyering
There are a number of sources that could provide guidance on the particular meaning of
effective misdemeanor representation. These sources include Sixth Amendment ineffectiveassistance-of-counsel jurisprudence and professional organizations’ standards for defense
practice.153 This section briefly describes how each of these sources currently fails to provide
norms for misdemeanor representation.
1. Lack of Misdemeanor Representation Guidance In Ineffective-Assistance-ofCounsel Jurisprudence
In Powell v. Alabama and Gideon v. Wainwright, the Supreme Court established the right to
counsel in federal and state felony prosecutions.154 The Court then moved forward to explore the
more nuanced questions of the quality of guaranteed counsel under the Sixth Amendment,
building on its statement that “[i]t has long been recognized that the right to counsel is the right
150

MINOR CRIMES, MASSIVE WASTE, supra note 12, at 14.
See supra notes 10-15 and accompanying text (citing statistics on misdemeanors from several jurisdictions).
152
See, e.g., MINOR CRIMES, MASSIVE WASTE, supra note 12, at 45; Spangenberg Study, supra note 130, at 155-64
(noting need for increased funding, and stricter requirements and recertification for attorneys). Professor Paul
Marcus has made a convincing argument that, in part because of the potentially severe collateral consequences of
any criminal conviction, the right to counsel should extend to all prosecutions, not only those with an imposed or
suspended sentence of incarceration. See Paul Marcus, Why the United States Supreme Court Got Some (But Not a
Lot) of the Sixth Amendment Right to Counsel Analysis Right, 21 ST. THOMAS L. REV. 142, 187-88 (2009).
153
See infra Part III.C (considering the defense community as another potential source).
154
Gideon v. Wainwright, 372 U.S. 335, 340-42 (1963) (holding right to counsel to apply to state felony
prosecutions through Sixth Amendment); Powell v. Alabama, 287 U.S. 45, 50 (1932) (noting right to counsel
located in Fourteen Amendment’s Due Process Clause); see also United States v. Wade, 388 U.S. 218, 224 (1967)
(holding that the right to counsel applies to any “critical stage” of a prosecution).
151

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to the effective assistance of counsel.”155 In the 1984 case Strickland v. Washington, the
Supreme Court articulated a two-prong test for determining ineffective assistance of counsel
claims. Under this test, a defendant must demonstrate that: (1) counsel’s representation was
incompetent as judged by prevailing professional norms; and (2) this incompetency prejudiced
the defendant.156 The following year, the Court held this same test applicable in the guilty plea
context.157
Despite the variety of structural impediments to judicial review of ineffective assistance
claims in misdemeanor cases explored below in Section III(A)(1), the limited number of lower
federal and state courts that have reviewed such claims applied Strickland’s two-prong
analysis.158 As the Supreme Court noted with respect to its right-to-counsel jurisprudence more
generally, “[b]oth Powell and Gideon involved felonies. But their rationale has relevance to any
criminal trial, where an accused is deprived of his liberty. Powell and Gideon suggest that there
are certain fundamental rights applicable to all such criminal prosecutions . . .”159 Because the
right to counsel is the right to effective assistance of that counsel, it is clear that the wellestablished Strickland test is the appropriate standard for ineffective assistance claims in
misdemeanor as well as felony cases.160
However, the Strickland test offers little concrete guidance to lower courts analyzing actual
claims of ineffective assistance and to defense attorneys regulated by its Sixth Amendment
holding. The Strickland decision emphasized how courts examining ineffective assistance claims
must “indulge a strong presumption that counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the defendant must overcome the presumption that,

155

McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970).
Strickland v. Washington, 466 U.S. 668, 687 (1984); see also Dripps, supra note 23.
157
See Hill v. Lockhart, 474 U.S. 52, 58 (1985). Although this landmark case established the test for ineffective
assistance claims following guilty pleas, neither Hill nor any later Supreme Court case examined the meaning of the
first (attorney competence) prong for guilty pleas. Instead, Hill made quick work of applying this newly declared
framework to reject Hill’s claim. The decision devoted only two short paragraphs to its finding that Hill failed to
demonstrate prejudice, thus rendering unnecessary any exploration of Hill’s claim that he pled guilty only after his
attorney’s misadvice about parole eligibility. Id. at 60.
158
See, e.g., Smith v. Mun. Court of Franklin Cnty., 802 F.2d 459 (6th Cir. 1986) (noting how the district court
properly applied Strickland standard in federal habeas corpus petition claiming ineffective assistance of counsel in
connection with state court misdemeanor); U.S. v. Somerset, No. 3:03-po-002, 2009 WL 3763058, at *3 (S.D. Ohio
2009) (noting, in allegation of ineffective assistance in misdemeanor case, how “[e]ach area of asserted deficient
performance is analyzed in terms of the Strickland standard: deficient performance and prejudice”); United States v.
Busse, 814 F. Supp. 760, 764-65 (E.D. Wis. 1993) (stating, in review of misdemeanor conviction, that “upon the
facts presented, the defendant has satisfied both prongs of the Strickland v. Washington test for ineffective assistance
of counsel”).
159
Argersinger v. Hamlin, 407 U.S. 25, 32 (1972).
160
There are a limited number of cases in which the standard in Stickland’s companion case, United States v.
Cronic, applies. United States v. Cronic, 466 U.S. 648 (1984). In the Cronic line of cases, a defendant who can
demonstrate suffering from the actual or constructive denial of any counsel is relieved of Strickland’s prejudice
requirement. Id.; see also Florida v. Nixon, 543 U.S. 175, 190 (2004) (“If counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing, then there has been a denial of Sixth Amendment rights that
makes the adversary process itself presumptively unreliable.”). However, courts rarely employ a presumed prejudice
standard based on denial of counsel; rather, Strickland governs the vast majority of ineffective-assistance claims. See
Keith Cuningham-Parmeter, Dreaming of Effective Assistance: The Awakening of Cronic’s Call to Presume
Prejudice from Representational Absence, 76 TEMPLE L. REV. 827, 881 (2003) (“The application of Cronic outlined
here will affect only a subset of cases involving ineffective assistance of counsel. . . . Most defendants with valid
claims will be unable to establish that their lawyer’s impairment rose to the level of “absence” required by Cronic.”)
156

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under the circumstances, the challenged action ‘might be considered sound trial strategy.’”161
The Court’s reliance on such a presumption was a sound rejection of any type of checklist
approach for ineffective assistance.162 The “wide range” of possible acceptable behavior, as one
commentator noted, “make[s] clear that one searching for the content of the reasonably effective
assistance standard must look primarily to judicial decisions applying that standard.” 163
In felony cases, particularly in the death penalty area, this content exists; the same cannot be
said in the misdemeanor context. There is no well-developed body of lower court decisions on
issues specific to ineffective assistance in misdemeanor cases, and the Supreme Court has never
had the occasion to apply the Strickland test in a case challenging a misdemeanor conviction.
After giving some examples of ineffective-assistance norms in the felony context, the remainder
of this section explores the lack of such content in the misdemeanor context.
The most fully developed area of ineffective assistance jurisprudence in felony cases is
defense counsel’s failure to investigate. For example, there are a number of Supreme Court
decisions — beginning with Strickland and continuing with decisions in the past two terms164 —
setting out defense counsel’s duty to investigate mitigating evidence for the penalty phase of
bifurcated death penalty trials.165 The result is robust guidance to defense attorneys, defender
offices, and judges in capital cases, mandating thorough investigation into the defendant’s mental
capacity, social background, and other potentially mitigating circumstances.166 Indeed, the
criminal defense community responded to these decisions with a spate of trainings designed to
implement the Court’s directives about more rigorous mitigation investigation.167 The Court’s
application of the Strickland test to a particular context thus led to changes in defender practices.

161

Strickland, 466 U.S. at 689.
See John H. Blume & Stacey D. Neumann, “It’s Like Déjà vu All Over Again”: Williams v. Taylor, Wiggins v.
Smith and Rompilla v. Beard and a (Partial) Return to the Guidelines Approach to the Effective Assistance of
Counsel, 34 AM. J. CRIM. L. 127, 140 (2007).
163
LAFAVE, supra note 144, at 664 (referring to Nix v. Whiteside, 475 U.S. 157 (1986), and Strickland v.
Washington, 466 U.S. 668 (1984)).
164
Sears v. Upton, 130 S. Ct. 3259, 3264 (2010); Porter v. McCullough, 130 S. Ct. 447, 453-54(2009); Strickland,
466 U.S. at 691.
165
See Gregg v. Georgia, 428 U.S. 153, 190-91 (1976) (upholding Georgia's statute requiring bifurcated trials where
there are separate guilt and sentencing phases); Gary Goodpaster, The Trial for Life: Effective Assistance of Counsel
in Death Penalty Cases, 58 N.Y.U. L. REV. 299, 317 (1983) (stating that bifurcated trials "are essential to a
constitutional death sentence").
166
See, e.g., Rompilla v. Beard, 545 U.S. 374, 391 (2005) (noting how defense counsel failed to examine file that
“disclose[d] test results that the defense's mental health experts would have viewed as pointing to schizophrenia and
other disorders, and test scores showing a third grade level of cognition after nine years of schooling”); Williams v.
Taylor, 529 U.S. 362, 396 (2000) (“Counsel failed to introduce available evidence that Williams was “borderline
mentally retarded” and did not advance beyond sixth grade in school.”).
167
See Seminar Program, Tenn. Ass’n of Crim. Defense Lawyers, Annual Death Penalty Training: The Fight for
Life (Apr. 8-9, 2005),
http://www.jenner.com/files/tbl_s23Events%5CLinktoAgenda1243%5C1238%5CTACDL_Death_Penalty_Seminar.
pdf (including attorney and mitigation specialist from the Wiggins case, with panel on Tracking Down the Witnesses
& Documents You Need to Discover Your Client’s Life Story.”); see also Seminar Program, Washburn Univ. Sch.
of Law, 2003 National Capital Defense and Mitigation Skills Training Conference (Nov. 6-8, 2003),
http://washburnlaw.edu/cle/programs/200311deathpenalty.php; Seminar Program, Nat’l Alliance of Sentencing
Advocates & Mitigation Specialists, Death Penalty Mitigation Institute, 3 (Aug. 1, 2006),
http://www.nlada.org/DMS/Documents/1151007501.75/NLADA_NASAMS_2006%20Conference.pdf (“The
NASAMS Death Penalty Mitigation Institute (DPMI) is a specialized one-day training event for capital mitigation
specialists.”); Program Schedule, DePaul Univ. Coll. of Law, Mitigation Training Program,
162

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The duty to investigate facts and law is not limited to the capital mitigation context. For
example, in a non–capital felony case, the Seventh Circuit Court of Appeals found ineffective
assistance based on counsel’s “failure to conduct the necessary legal investigation” into a viable
justification defense to a charge of being a convicted felon in possession of a firearm.168 Thus, in
addition to guidance on the duty to investigate capital mitigation evidence, defense lawyers also
have guidance in such areas as the duty to investigate affirmative defenses. Another example of
guidance from the courts about the meaning of effective assistance is the Ninth Circuit felony
case of Riggs v. Fairman.169 There, the court found ineffective assistance where defense counsel
advised Riggs to reject a plea offer with a five-year prison term, telling him that the maximum
exposure he faced if convicted at trial was only nine years. After Riggs followed counsel’s
advice and was later convicted at trial, the court sentenced him to twenty-five years to life under
California’s “three strikes” law.170 In finding that defense counsel’s error constituted
incompetent performance under Strickland’s first prong, the court stated that “[d]efense counsel's
advice to Riggs was not only erroneous, but egregious, considering the discrepancy between the
two punishments.”171 The difference between the rejected five-year offer and eventual twentyfive years to life sentence also led the court to find that Riggs satisfied Strickland’s prejudice
prong, because “[s]uch a discrepancy between the two sentences would compel any reasonable
person to take the deal offered by the prosecution.”172
In theory, the holdings in these felony cases would guide misdemeanor representation where
there is a right to counsel because, as noted above, the constitutional standard is the right to the
effective assistance of counsel. Thus, misdemeanor attorneys would have a duty to investigate
evidence relevant to mitigation of the sentence, a duty to investigate the facts and law
surrounding potential affirmative defenses before counseling the client about a plea offer, and a
duty to counsel the client about the correct maximum sentence.
In reality, these felony case holdings, grounded in the facts and practices specific to such
serious felony cases, do not offer sufficient guidance for misdemeanors. This is because
misdemeanor attorneys work under the particular, often egregious, conditions of the lower
criminal courts. Misdemeanor attorneys across the country handle caseloads that make almost
any investigation difficult.173 These attorneys also represent clients in cases where the State or
court routinely make plea or sentence offers at the first appearance or shortly thereafter, when
counsel has not yet interviewed her client, let alone had time to research the law and facts of any
affirmative defenses or sentence mitigation.174 These are some of the conditions relevant to
misdemeanor practice that differ from felony representation, and that call for fact-specific
analysis from the courts in order to establish a jurisprudence of ineffective assistance that can
realistically apply to misdemeanors. This is not to say that courts should excuse inadequate

http://www.law.depaul.edu/centers_institutes/cjcc/mitigation_default.asp (last visited Feb. 11, 2011) (describing
DePaul Law School’s Mitigation Training Program, located within its Center for Justice in Capital Cases).
168
United States v. Mooney, 497 F.3d 397, 404 (4th Cir. 2007) (finding ineffective assistance where counsel failed
to inform client that justification is a defense to the federal crime of being a felon in unlawful possession of a
firearm, and where the facts supported the defense).
169
399 F.3d 1179, 1183 (9th Cir. 2005).
170
Id.
171
Id.
172
Id.
173
See supra Part I.A (discussing caseloads in misdemeanor cases).
174
See supra Part I.D.

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representation on the basis of egregious conditions that preclude more rigorous advocacy.175
Indeed, judicial analysis of misdemeanor ineffective assistance might well result in a strong
message to legislatures about the need for reform.176
There is a small but significant group of cases that address some of the workload and other
issues that dominate misdemeanor representation, even though they are not focused on
misdemeanors. These cases involve systemic challenges to the delivery of indigent defense in a
particular jurisdiction. For example, a Connecticut state court class action “challenged excessive
attorney caseloads, substandard rates of compensation for attorneys, and a lack of adequate
representation for juvenile defendants.”177 However, of the limited number of an early group of
such cases that met with initial success, “the relief . . . has not been sustained.”178 Although
several more recent systemic challenges led to some “substantive, lasting reform,”179 the current
fiscal crisis has resulted in the recent rolling back of these reforms in some jurisdictions.180 To
the extent decisions in systemic challenge cases address issues present in misdemeanor cases,
they offer some guidance for misdemeanor advocacy. However, they do not focus on the lower
criminal courts and are thus of limited use in defining specific standards for misdemeanor
representation.
There is insufficient case law to offer useful misdemeanor guidance. The Argersinger line of
cases tells judges when they must appoint counsel, but not how that counsel must behave once
appointed. Argersinger, Scott v. Illinois, and Shelton v. Alabama all involved challenges to uncounseled misdemeanor convictions; the issue of effective assistance was not before the Court.181
Indeed, recent litigation involving misdemeanors and the right to counsel continues to focus on
the fundamental question of whether the right applies, albeit in somewhat more nuanced
circumstances. For example, the Kansas Supreme Court recently found that an un-counseled
misdemeanor conviction that led to jail time — and was thus unconstitutional — could not be
used for sentence enhancement purposes in a later felony proceeding.182 By contrast, there are
175

See infra Part II.A.2 (rejecting the idea of resource deprivation driving constitutional rules).
See infra notes 231-38 (describing constitutional road maps for legislatures in the area of criminal procedure).
177
Cara Drinan, The Third Generation of Indigent Defense Litigation, 33 N.Y.U. REV. L. & SOC. CHANGE 427, 445
(2009) (describing Rivera v. Rowland, No. CV 950545629S, 1998 WL 96407, at 15-17 (Conn. Super. Ct. Feb. 20,
1998)). Professor Drinan has documented what she calls the first two generations of such challenges, and suggested
approaches for the forthcoming “third generation” of indigent defense litigation. These lawsuits take various forms,
including challenges to the defender system in the context of an individual criminal case, and cases that use a class
action model. Id. at 433.
178
Id. at 439. But see id. at 441-42 (noting, with respect to class action suits challenging the county or state defense
system, “Despite the unavailability of a federal forum for these claims to date, it is worth noting that Luckey did
create some good law for indigent defense advocates going forward. Importantly, Luckey recognized that a
defendant has the right to make a Sixth Amendment challenge outside the context of post-conviction review,
reasoning that the right to counsel is more than the right to a certain result.”) (citing Luckey v. Harris, 860 F.2d
1012, 1017-18 (11th Cir. 1988)).
179
Id. at 444.
180
See, e.g., Dave Collins, Public Defenders Feel Squeeze Conn. Cuts Create Caseload Worries, BOSTON.COM (July
21, 2011), http://articles.boston.com/2011-07-21/news/29798875_1_public-defenders-caseload-budget-cuts (noting
how public defender has stated that “[s]ome public defenders’ caseloads are already at or above state guidelines set
in 1999 in response to a lawsuit that said the public defender system was so overwhelmed that it could no longer
fulfill clients’ constitutional rights to an adequate legal defense”).
181
See supra Part II. A. (discussing this troika of cases).
182
State v. Youngblood, 206 P.3d 518, 525 (Kan. 2009). Although an earlier United States Supreme Court decision
found that “an uncounseled conviction valid under Scott may be relied upon to enhance the sentence for a
subsequent offense, even though that sentence entails imprisonment,” Nichols v. United States, 511 U.S. 738, 746176

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relatively few cases that address claims of ineffective assistance in misdemeanor cases. A search
of all reported New York state cases from 2009 until present, with the terms “ineffective
assistance of counsel” and “misdemeanor,” reveals only twenty-two cases that involve only
misdemeanor charges and analyze a claim of ineffective assistance;183 the same search in the
Second Circuit Court of Appeals and all New York State federal district courts reveals only two
such cases.184 These numbers are not surprising, because only a small percentage of individuals
convicted of a misdemeanor file an appeal or seek other post-conviction review of counsel’s
effectiveness.185 Of the twenty-four cases, seventeen relate to one particular issue: the failure to
advise a client about the deportation consequences of a misdemeanor conviction in violation of
the Sixth Amendment duty to warn set out in the recent Supreme Court case of Padilla v.
Kentucky.186
The concentration of cases in this one specific area of misdemeanor practice, which is not
unique to New York,187 is not insignificant. As discussed in Section I(B), misdemeanor
convictions can result in many severe collateral consequences, in addition to deportation.
Although Padilla itself involved a felony drug trafficking charge, a number of lower courts have
applied Padilla’s duty to warn to misdemeanor cases involving deportation as well as other
collateral consequences.188 It is in lower-level cases — where the penal consequences are not as
severe — that defendants are most likely to succeed in proving the second prong of the test: that
the attorney’s failure to warn prejudiced the defendant.189 This means demonstrating that, given
full knowledge about the collateral consequence, it is reasonably likely there would have been a

47 (1994), the Youngblood court ruling related to a conviction that was not valid under Scott. Youngblood, 206 P.3d
at 523.
183
Westlaw Search, WESTLAW, http://www.westlaw.com (search in the NY-CS; then search “Misdemeanor &
“ineffective assistance of counsel” and da(aft 2008)). There were 53 cases that came up, 22 of which involved
Misdemeanor charges and IAC (the rest just mentioned IAC in passing, but it was not at issue in the case, or the case
involved both felonies and misdemeanors).
184
Westlaw Search, WESTLAW, http://www.westlaw.com (search in the DCTNY; then search “Misdemeanor &
“ineffective assistance of counsel” and da(aft 2008)). Westlaw Search, WESTLAW, http://www.westlaw.com (search
in the CTA2R; then search “Misdemeanor & “ineffective assistance of counsel” and da(aft 2008)). There were
81cases in DCTNY and 3 cases in CTA2R, and there was one misdemeanor IAC case in each of those groups.
185
See infra Part III.B (discussing structural impediments to ineffective assistance of counsel claims in misdemeanor
cases); see also JOHN SCALIA, Federal Criminal Appeals, 1999 with Trends 1985–1999, in U.S. DEP’T OF JUSTICE,
BUREAU OF STATISTICS SPECIAL REP., at 2-3 (Ser. No. NCJ 185055, 2001), available at
http://bjs.ojp.usdoj.gov/content/pub/pdf/fca99.pdf (finding that, with respect to federal court cases in 1999,
“[d]efendants convicted of property, immigration, and misdemeanor offenses were among the least likely to file an
appeal,” and that defendants filed five appeals for every 100 convictions in misdemeanor cases).
186
Padilla v. Kentucky, 130 S. Ct. 1473, 1483 (2010) (holding that where the deportation consequences of a criminal
conviction are “succinct, clear and explicit,” defense counsel has a Sixth Amendment obligation to correctly inform
client of this consequence).
187
See e.g., Ex parte Tanklevskaya, No. 01-10-00627-CR, 2011 WL 2132722, at *11 (Tex. App. May 26, 2011)
(finding ineffective assistance of counsel under Strickland and Padilla when counsel failed to advice client that
pleading guilty to a misdemeanor would have immigration consequences).
188
See, e.g., People v. Harding, 30 Misc. 3d 1237(A), slip op. at *34 (N.Y. Crim. Ct. March 15, 2011) (applying
Padilla framework to failure to advise about deportation consequences); Commonwealth v. Abraham, 996 A.2d
1090 (Pa. 2010) (applying Padilla framework to failure to warn about loss of pension); see also State v. Powell, 935
N.E.2d 85, 92 (Ohio Ct. App. 2010) (finding ineffective assistance where counsel improperly advised his client
about sexual offender registration).
189
Strickland v. Washington, 466 U.S. 668, 687 (1984).

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different outcome in the case.190 Thus, although Mr. Padilla did not succeed in proving prejudice
on remand from the Supreme Court,191 some misdemeanor defendants will be able to show how
they would not have pleaded guilty, and would have had other viable options in their case, had
their attorney properly warned them about the severe collateral consequences of their “minor”
misdemeanor charges.
As the nascent post-Padilla misdemeanor jurisprudence develops, it will send a message to
defenders that warnings about deportation, and possibly other severe collateral consequences, are
not only mandated in all levels of cases, but that the failure to warn is most likely going to
prejudice the misdemeanor client. This means that training, interviewing, counseling, and
negotiation and sentencing advocacy in this area are critical for misdemeanor attorneys. Indeed,
the decision in Padilla has already led to numerous trainings about its practical application.192
These developments in the wake of Padilla demonstrate the promise of guidance for
misdemeanor attorneys in other areas. Although this guidance is badly needed, there are
unfortunately a number of structural and other reasons for the paucity of misdemeanor effectiveassistance jurisprudence. Before exploring these obstacles in Part III, the remainder of this
section highlights another critical missing piece of guidance for misdemeanor attorneys: the lack
of professional standards that address core misdemeanor issues.
2. Lack of Misdemeanor Representation Guidance In Professional Standards for
Defense Representation
There are a number of non-constitutional sources that provide standards for defense
representation. These sources range from published national standards to unpublished local
public defender office guidelines. They include general membership organizations, such as the
American Bar Association (“ABA”), and more specialized groups, such as the National
Association of Criminal Defense Lawyers.193 Defense representation standards serve two main
purposes: First, they offer practical guidance to criminal defense attorneys and serve as internal
190

See Padilla, 130 S. Ct. at 1482; see also Roberts, supra note 138, at 698, 725 (discussing how the prejudice
prong’s “different outcome” requirement is broader than a showing that the defendant would have chosen and won a
trial over a guilty plea and should instead be interpreted to allow for different outcomes based on negotiation or
sentencing advocacy that could have led to avoidance of the collateral consequence).
191
Commonwealth v. Padilla, 01-CR-00517 (Hardin Cir. Ct. Feb. 18, 2011) (on file with author) (holding that
Padilla failed to demonstrate that counsel’s failure to properly warn him about the deportation consequences of his
guilty plea prejudiced him).
192
See, e.g., The Fifth National Training on the Immigration Consequences of Criminal Convictions, DEFENDING
IMMIGRANTS PARTNERSHIP, http://defendingimmigrants.org (last visited Mar. 12, 2011); Upcoming Trainings: The
Impact of Padilla v. Kentucky, PAIR PROJECT, http://www.pairproject.org/trainings.php (last visited Mar. 12, 2011).
For practice advisories on Padilla, see generally IMMIGRANT DEF. PROJECT, A DEFENDING IMMIGRANTS
PARTNERSHIP PRACTICE ADVISORY: DUTY OF CRIMINAL DEFENSE COUNSEL REPRESENTING AN IMMIGRANT
DEFENDANT AFTER PADILLA V. KENTUCKY (Apr. 2010), available at
http://www.immigrantdefenseproject.org/docs/2010/10-Padilla_Practice_Advisory.pdf; DAN KESSELBRENNER,
NAT’L IMMIGRATION PROJECT, A DEFENDING IMMIGRANTS PARTNERSHIP PRACTICE ADVISORY: RETROACTIVE
APPLICABILITY OF PADILLA V. KENTUCKY (2010), and WASH. DEFENDER ASS’N’S IMMIGRATION PROJECT, HOW TO
ADVISE NONCITIZEN DEFENDANTS: WHAT IS “CLEAR AND UNCLEAR” AFTER PADILLA V. KENTUCKY (2010).
193
See ABA, CRIMINAL JUSTICE STANDARDS , available at
http://www.americanbar.org/groups/criminal_justice/policy/standards.html (noting how the second edition of most
volumes has been completed, and how a third edition is “well underway”); LEGAL AID & DEFENDER ASS’N, NAT’L
PERFORMANCE GUIDELINES FOR CRIMINAL DEFENSE REPRESENTATION (2006), available at
http://www.nlada.org/Defender/Defender_Standards/Performance_Guidelines.

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benchmarks for adequate defense representation. Second, courts rely on professional standards to
determine the “prevailing professional norms” against which to judge an ineffective assistance of
counsel claim.194 The central role that professional standards play in guiding both practice and
judicial decisions demonstrates the importance of clear standards for misdemeanor
representation.
Margaret Colgate Love has called the ABA Criminal Justice Standards one of the “most
respected sources of criminal defense lawyers’ professional duty to the client . . . Over the years,
the Standards have earned their place as a measure of ‘prevailing professional norms’ for
purposes of the Sixth Amendment through the thoroughness and balance of the process by which
they are developed.”195 The Criminal Justice Standards consist of twenty-three separate sets of
guidelines on diverse topics ranging from the “Urban Police Function,” to “Discovery.”196 In
determining attorney competency under the first Strickland prong, the Supreme Court relies
more heavily on the ABA Standards than on other professional norms; the Court has referenced
the Criminal Justice Standards’ “Defense Function” section in its ineffective assistance
analyses,197 and has also relied on the ABA’s Guidelines for the Appointment and Performance
of Counsel in Death Penalty Cases.198
The Court’s decisions in the well-developed area of ineffective-assistance in capital
mitigation demonstrate an increasing reliance on professional standards, and, more specifically,
on ABA standards.199 The Court cited ABA Standards once in Williams v. Taylor, the first
Supreme Court case to actually find ineffective assistance under the Strickland two-prong
approach. Three years later, it cited ABA standards six times in Wiggins v. Smith, and then eight
times in the 2005 case of Rompilla v. Beard.200 The Court went from describing ABA standards
in Strickland as “guides to determining what is reasonable [attorney behavior], but . . . only
guides,” to characterizing them in Wiggins as “standards to which we long have referred as
‘guides to determining what is reasonable.’”201 Thus, the Court recently added structure to the

194

See Strickland v. Washington, 466 U.S. 668, 688 (1984) (citing the ABA’s Criminal Justice Standards).
Margaret Colgate Love, Evolving Standards of Reasonableness: The ABA Standards and the Right to Counsel in
Plea Negotiations, 39 FORDHAM URB. L. J. (forthcoming 2011) (manuscript at 7), available
at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1922930.
196
See CRIMINAL JUSTICE STANDARDS, supra note 193, at Standard 1 (urban review of sentences), Standard 11
(discovery); see also Warren E. Burger, Introduction: The ABA Standards for Criminal Justice, 12 AM. CRIM. L.
REV. 251, 251 (1974); Martin Marcus, The Making of the ABA Criminal Justice Standards, 23 CRIM. JUST., 14
(2009) (explaining how the ABA Standards arise from a consensus process involving defenders, prosecutors, and
judges).
197
See, e.g., Rompilla v. Beard, 545 U.S. 374, 387 (2005) (“[W]e long have referred [to these ABA Standards] as
‘guides to determining what is reasonable.’”); Strickland, 466 U.S. at 688 (describing the ABA Standards as “guides
to determining what is reasonable [attorney behavior], but . . . only guides,”).
198
See, e.g., Rompilla, 545 U.S. at 387 (referring to ABA Guidelines and Standards in determining what constitutes
deficient performance). The Guidelines are not one of the Criminal Justice Standards, but rather are separately
published. See ABA, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases,
31 HOFSTRA L. REV. 913, 916 (2003), available at
http://www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_representation/2003guidelines.aut
hcheckdam.pdf.
199
See supra note 164 to 167(describing ineffective-assistance jurisprudence in the capital mitigation context).
200
Blume & Neumann, supra note 162 at 151-52; see also Rompilla, 545 U.S. at 381; Wiggins v. Smith, 539 U.S.
510, 524 (2003); Williams v. Taylor, 529 U.S. 362, 396 (2000).
201
Wiggins, 539 U.S. at 524; Strickland, 466 U.S. at 688.
195

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purposely open-ended, deferential first prong inquiry by relying more heavily and explicitly on
published professional standards for defense practice than it had in the past.202
One could certainly attribute these developments to at least some Justices’ increasing
discomfort with and focus on the death penalty in the years after the Williams decision. It was
during this period that Justices Ginsburg and O’Connor gave speeches voicing concerns about
the troubling state of defense representation in capital cases and the possibility of executing
innocent defendants.203 It was also during this period that the ABA updated its Guidelines for
the Appointment and Performance of Defense Counsel in Death Penalty Cases.204
However, a narrative that explains the Court’s more robust ineffective-assistance
jurisprudence and heavier reliance on the ABA’s Standards and Guidelines as a concern solely
with capital cases has two limitations. First, although such concerns may well have animated the
Court, the Court did not limit its recent ineffective-assistance jurisprudence to the capital context
— a move the Court certainly could have taken given that the cases all involved capital
mitigation review. Indeed, as early as Strickland, the Court noted how “[a] capital sentencing
proceeding like the one involved in this case . . . is sufficiently like a trial in its adversarial
format and in the existence of standards for decision that counsel's role in the proceeding is

202

See Rompilla, 545 U.S. at 381 (noting how in judging defense's investigation, as in applying Strickland generally,
hindsight is discounted by pegging adequacy to "counsel's perspective at the time" investigative decisions are made
and by giving a "heavy measure of deference to counsel's judgments"). There has been some commentary that one of
the Court’s recent ineffective-assistance decisions demonstrates a move away from heavy reliance on the ABA
Standards in determining prevailing professional norms. Reinstating Van Hook’s death sentence in Bobby v. Van
Hook, the Court critiqued the Sixth Circuit’s reliance on the ABA’s Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases, which were promulgated some 18 years after Van Hook’s
sentencing proceeding. Bobby v. Van Hook, 130 S. Ct. 13, 16 (2009). In addition to disapproving of such
prospective application, the opinion criticized the lower court for treating the ABA Guidelines as “inexorable
commands” rather than “merely as evidence of what reasonably diligent attorneys would do.” Id. at 17. The Court
quoted liberally from its prior ineffective-assistance cases, and it is not clear that Van Hook is a step back from that
jurisprudence in terms of its reliance on the Guidelines, particularly since the opinion was per curiam. Van Hook
did, however, lead to commentary on the issue. See, e.g., Memorandum from the ABA,on Bobby v. Van Hook (Nov.
10, 2009), available at https://www.abanet.org/deathpenalty/resources/docs/Microsoft%20Word%20.%20Memorandum%20ABA%20Death%20Penalty%20Representation%20Project%20re%20Van%20Hook.pdf;
Posting of Marcia Coyle,THE BLOG OF LEGAL TIMES (Nov. 10, 2009 3:15 PM EST),
http://legaltimes.typepad.com/blt/2009/11/a-justices-curious-comment-about-aba-guidelines-for-death-penaltylawyers-.html. One term after Van Hook, the Court cited to that decision’s language about “inexorable commands,”
but went on in the same sentence to note how the ABA Criminal Justice Standards “may be valuable measures of
the prevailing professional norms of effective representation,” and then relied heavily on various professional
standards in its analysis. See Padilla v. Kentucky, 130 S. Ct. 1473, 1482 (2010).
203
See Ruth Bader Ginsburg, In Pursuit of the Public Good: Access to Justice in the United States, 7 WASH. U. J.L.
POL’Y 1, 10 (2001) (noting, in remarks at Access to Justice conference, how she has “yet to see a death case, among
the dozens coming to the Supreme Court on eve of execution petitions, in which the defendant was well represented
at trial”); Crystal Nix Hines, Lack of Lawyers Hinders Appeals in Capital Cases, N.Y. TIMES, July 5, 2001, at A1
(noting Justice O'Connor’s comment, in a speech to the Minnesota Women Lawyers, that “[p]erhaps it's time to look
at minimum standards for appointed counsel in death cases”). It was also during this period that the Court held
unconstitutional the execution of an individual for a crime committed when under the age of 18. Roper v. Simmons,
543 U.S. 551, 569 (2005).
204
See ABA, Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases, 31
HOFSTRA L. REV. 913, 913 (2003), available at
http://www.americanbar.org/content/dam/aba/migrated/2011_build/death_penalty_representation/2003guidelines.aut
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comparable to counsel's role at trial.”205 The applicability of the Court’s ineffective-assistance
norms to non-death cases — and indeed to misdemeanors206 — is thus clear. The second
limitation to a narrative that explains the Court’s interest in ineffective assistance as an interest in
capital cases is that the Court found ineffective assistance for failure to warn about deportation
consequences in Padilla, which involved a felony marijuana trafficking case where Padilla had
already served his sentence by the time the Court reviewed the case.207 The Court began its
exploration of defense counsel’s Sixth Amendment duty to warn by noting how the ABA
Standards “may be valuable measures of the prevailing professional norms of effective
representation, especially as these standards have been adapted to deal with the intersection of
modern criminal prosecutions and immigration law.”208 The decision then went far beyond the
Court’s more recent singular focus on the ABA Standards in its exploration of professional
norms and cited a number of other standards to support its statement that “weight of prevailing
professional norms supports the view that counsel must advise her client regarding the risk of
deportation.”209 These other sources included the National Legal Aid and Defender
Association’s Performance Guidelines for Criminal Representation, the Department of Justice’s
Compendium of Standards for Indigent Defense Systems, various criminal law and practice
treatises, and law review articles.210 In the 2011-2012 term, the Court will decide two more noncapital claims of ineffective assistance, Missouri v. Frye, and Lafler v. Cooper. The former
involves a felony charge of driving with revoked driving privileges, and the latter involves
assault with intent to murder.211 These recent and upcoming cases demonstrate the Court’s
interest in professional standards for effective representation in non-capital cases,212 and the
importance of having standards for misdemeanor practice.
In the wake of the Supreme Court’s emphatic reliance on professional standards in recent
ineffective-assistance jurisprudence, an institutional defender office or an attorney new to
criminal practice might reasonably turn to published professional standards for guidance on
representation in misdemeanor cases.213 That attorney will find different defender caseload

205

See Strickland, 466 U.S. at 686 (internal citations omitted) (explaining how, “[f]or purposes of describing
counsel's duties, therefore, Florida's capital sentencing proceeding need not be distinguished from an ordinary
trial”).
206
See supra notes 158-160 (discussing Strickland test’s application to misdemeanors).
207
Padilla, 130 S. Ct. at 1473.
208
Id. at 1482.
209
Id.
210
Id.
211
Lafler v. Cooper, 376 Fed. Appx. 563, 565-66(6th Cir. 2010), cert. granted, 131 S. Ct. 856 (2011) (No. 10-209);
Missouri v. Frye, 311 S.W.3d 350, 351 (Mo. Ct. App. 2010), cert. granted, 131 S. Ct. 856 (2011) (No. 10-444).
212
These cases also demonstrate what Professor Stephanos Bibas has described as “a watershed in the Court’s
approach to regulating plea bargains.” Stephanos Bibas, Regulating the Plea Bargain Market: From Caveat Emptor
to Consumer Protection, 99 CALIF. L. REV. 1117, 1118 (2011). Bibas notes how the Padilla decision marked the
moment when “[t]he Court began to move beyond its fixation upon the handful of cases that go to jury trials. It
recognized that the other 95 percent of adjudicated cases resolved by guilty pleas matter greatly, and began in
earnest to regulate plea bargains the way it has long regulated jury trials.” Id. at 1118-19. This willingness to delve
into the messy area of plea bargain regulation will surely affect misdemeanor practice; indeed, that is already the
case with Padilla, which did not limit the duty to warn about deportation to felony cases. Padilla, 130 S. Ct. at 1483.
213
See Blume & Neumann, supra note 162, at 147 (“The jurisprudential shift is now evident and established. Lower
courts must consider the ABA Guidelines and other national standards to determine the reasonableness of counsel's
behavior in light of prevailing professional norms as part of ineffective counsel analysis.”).

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recommendations for felonies and misdemeanors.214 That attorney may also find different levels
of compensation for felony and misdemeanor representation in her jurisdiction,215 which
suggests different expectations for felony and misdemeanor representation. However, that
attorney will not find guidance in professional standards on the meaning of any such differing
expectations. For example, the ABA endorses caseload caps of 300 for non-traffic
misdemeanors and 150 for felonies, but does not explain what misdemeanor lawyers are
expected to cut or do differently in their representation to handle a caseload that is double that
recommended for felony attorneys.216 Thus, the widely-cited ABA Criminal Justice Standards
do not offer any separate guidelines for misdemeanors.
The Criminal Justice Standards do recognize, in various provisions and commentary, some
of the differences between misdemeanor and felony cases. However, these references are largely
in relation to the baseline issue of whether there is a right to counsel at all under the Sixth
Amendment.217 One such discussion is located in the “Guilty Pleas” Standard relating to “[a]id
of counsel; time for deliberation.”218 This Standard first states that a defendant should have
reasonable time to consult with an attorney before entering a guilty plea. The second part of the
Standard states that a defendant who chooses to waive counsel should have “a reasonable time
for deliberation” about a guilty plea before it is accepted by the court, and after certain judicial
advisement.219 Although there is no misdemeanor-felony distinction in the text of this “aid of
counsel” Standard, the commentary recognizes how this provision might work differently if the
charge is a misdemeanor where the defendant does not have a right to an attorney.220
Criminal Justice Standards Commentary that better accounts for the reality of the lower
courts notes how the “time for deliberation” Standard purposefully did not include a specific
time period. The Commentary thus explains that set time periods would introduce “an
undesirable degree of rigidity by requiring two initial court appearances even in those cases, such
as misdemeanor traffic offenses, in which a defendant might wish to enter a plea immediately
rather than being required to return to the jurisdiction for a second appearance.”221 Certainly,

214

See supra note 78 and accompanying text (noting how nationally recognized standards are 400 non-traffic
misdemeanors per year, with the number dropping to 150 for felonies).
215
See, e.g., 18 U.S.C. § 3006A(d)(2) (2011) (setting hourly rates and noting that payment “shall not exceed $7,000
for each attorney in a case in which one or more felonies are charged, and $2,000 for each attorney in a case in
which only misdemeanors are charged”); see also NEV. REV. STAT. § 7.125 (2001) (setting capital and non-capital
case hourly rates and capping felony or “gross misdemeanor” representation at $2500 and misdemeanor
representation at $750).
216
See ABA SPECIAL COMM. ON CRIMINAL JUSTICE IN A FREE SOC’Y, CRIMINAL JUSTICE IN CRISIS: A REPORT TO
THE AMERICAN PEOPLE AND THE AMERICAN BAR ON CRIMINAL JUSTICE IN THE UNITED STATES (1988), available at
http://www.druglibrary.org/special/king/cjic.htm (stating that ABA endorses National Advisory Commission
(“NAC”) caseload numbers, although list following endorsement notes misdemeanor cap of 300, rather than 400 as
NAC recommends).
217
See, e.g., ABA, CRIMINAL JUSTICE STANDARDS: PROVIDING DEFENSE SERVICES (3d ed. 1992) (search reveals 19
mentions of “misdemeanor,” most relating to this baseline issue).
218
See ABA, CRIMINAL JUSTICE STANDARDS: PLEAS OF GUILTY § 14-1.3 (3d ed. 1999).
219
Id. § 14-1.3(a). This time for deliberation would come after advice by the court, spelled out in another guideline,
which relates to such things as maximum sentence, the waiver of certain constitutional rights, and advisement about
certain collateral consequences of a criminal conviction. See id. at § 14-1.4.
220
Id. § 14-1.3 (“[I]t would impose a significant burden on the courts to require that all defendants be represented by
counsel in order to plead guilty, even in misdemeanor cases involving no prison sentence.”).
221
Id. (“[I]n most cases, as a practical matter, the proceedings required to ensure that the defendant has properly
waived counsel will necessitate a delay between the initial court appearance and the entry of a plea.”).

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this commentary recognizes and advances a system where low-level offenses are treated
differently from offenses carrying a greater potential criminal penalty.
Other “misdemeanor” mentions in the ABA Criminal Justice Standards are passing
illustrative examples that just happen to be misdemeanor cases, but are not related to the question
of effective assistance for misdemeanors.222 There are general standards that, if applied to
misdemeanors as well as felonies, would significantly raise the level of practice. For example,
one Standard states that "[d]efense counsel should conduct a prompt investigation of the
circumstances of the case and explore all avenues leading to facts relevant to the merits of the
case and the penalty in the event of conviction." 223 To be sure, it is an unfortunate reality that
this thorough investigation often does not take place in felony cases.224 However, investigation is
impossible in misdemeanor cases that are resolved by guilty plea shortly after a defendant meets
his counsel at the first appearance, as many cases are in some jurisdictions.225 The same is true
when a defender has a high misdemeanor caseload, or when office investigative resources are not
available for misdemeanors.
The ABA Criminal Justice Standards acknowledge that misdemeanors are constitutionally
different from felonies in terms of the attachment of the right to counsel.226 However, the
Standards do not address the ways in which defense counsel might effectively represent
misdemeanor clients, given the particular needs and challenges of misdemeanor representation,
when the right to counsel applies. There is a similar lack of guidance in other standards, such as
the National Legal Aid & Defender Association’s Performance Guidelines for Criminal Defense
Representation, which do not contain the word “misdemeanor.”227 The current lack of guidance
from professional standards can lead to one of three conclusions: the system must change to
allow defense counsel in misdemeanors to adhere to existing professional standards; there must
be new standards designed to address a misdemeanor-specific context; or perhaps some
combination of these two potential responses.228
222

See, e.g., id. § 14-1.8(a)(ii) (illustrating proper consideration of a guilty plea in final disposition approval, for a
court allowing misdemeanor guilty plea in exchange for dismissal of felony charges in order “to avoid the stigmaand some or all of the collateral consequences-of a felony conviction”).
223
See, e.g., ABA, STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION AND DEFENSE FUNCTION § 4-4.1. (3d ed.
1993).
224
See, e.g., Knighton v. Maggio, 740 F.2d 1344 (5th Cir. 1984) (denying ineffective assistance claim despite
description of defense counsel’s investigation in capital case as extremely limited); Jane Fritsch & Matthew Purdy,
Defenders by Default: A Special Report; Option to Legal Aid for Poor Leaves New Yorkers at Risk, N.Y. TIMES,
May 23, 1994, at A1 (noting examples where court-appointed attorneys have failed to investigate their clients'
cases).
225
See, e.g., THREE-MINUTE JUSTICE, supra note 1, at 15 ("Almost 70% of defendants observed entered a guilty or
no contest plea at arraignment."). In some jurisdictions there is no counsel at the initial arraignment or counsel is
present only for the arraignment and the case is then re-assigned. In these jurisdictions, even if there is no guilty
plea until the appearance after arraignment, there is simply no real opportunity for defense counsel — who is
appearing on the case and often meeting her client for the first time – to investigate the facts of the case.
226
See supra notes 216-219.
227
See NAT’L LEGAL AID & DEFENDER ASS’N, PERFORMANCE GUIDELINES FOR CRIMINAL DEF. REPRESENTATION
(1997), available at http://www.nlada.org/Defender/Defender_Standards/Performance_Guidelines (searching for
“misdemeanor” shows zero results, and guidelines do not separate “serious” from “less serious” crimes or use any
similar categorization).
228
Some jurisdictions have requirements for capital cases and programs to assign “qualified” capital counsel. See
Bruce A. Green, Lethal Fiction: The Meaning of “Counsel” in the Sixth Amendment, 78 IOWA L. REV. 433, 489-90
(1993) (listing examples); see also id. at 495, nn.247-50 (noting there are legal standards on capital trial issues
applying specifically to that context, including death qualification, jury instructions, and bifurcation of guilt and

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III. Institutional Competencies In Responding to the Need for Misdemeanor Standards
The academic and practice communities have not paid sufficient attention to the significance
of a misdemeanor charge or conviction, or to the importance of defining and ensuring quality
representation in these seemingly petty cases. Yet as demonstrated in Part I, misdemeanors
matter. Once proper consideration is given to this overlooked area of criminal law and
procedure, a variety of questions flow. They include the core issues of what can be done and who
can do what. This Part explores potential divisions of labor among the various institutions
connected to the criminal justice system in addressing the specialized needs of misdemeanor
defendants. Who can act to fill the void for standards of misdemeanor representation, given
particular institutional competencies? The legislature, judiciary, professional organizations, and
the defense bar are all well-situated to effectuate different, important changes. Although this
Article does not attempt to fully answer the complex question of what those institutions might
do, this Part does address some of the ways in which each group might react to the crisis in
misdemeanor representation and the lack of standards.
Part A considers the legislative role in easing the crisis by moving certain truly low-level
misdemeanors out of the criminal justice system entirely, and notes how this is an opportune
moment for undertaking such cost-saving reforms. Part B describes the important role that
courts play in advancing a discussion of and potential solutions to inadequate representation in
the nation’s lower courts. While there are numerous structural obstacles to courts articulating
constitutional standards for effective assistance of counsel in misdemeanor cases, these obstacles
are not a total bar to a misdemeanor jurisprudence. Equally important as the articulation of
constitutional standards is the role of the courts as provocateurs, in spurring discussion about
reform. Part C is a call to professional organizations, including the ABA’s Criminal Justice
Standards project, to consider the particular context of misdemeanor representation. While there
is no bright line between felony and misdemeanor representation,229 there are already separate
national caseload suggestions and separate levels of compensation in many jurisdictions for the
two categories of cases. Professional organizations should either promulgate misdemeanorspecific standards for representation or clarify that general standards apply equally to felonies
and misdemeanors, with commentary addressing how those standards might be met in the
different contexts. Finally, Part D describes the role the defender community might play in
shaping misdemeanor standards. While there are unfortunately many fronts on which the
defender community might begin to address the misdemeanor representation crisis, Part D
focuses on two areas in particular need of attention: training in the identification and use – in
client counseling, negotiation and sentencing advocacy – of collateral consequences; and
lowering the high rates of waiver of the right to counsel in the lower criminal courts.

punishment); supra note 198 and accompanying text (noting that the ABA has a separate set of standards for capital
cases).
229
See supra note 68 and accompanying text.

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A. The Legislative Role: Moving Minor Misdemeanors Out of the Criminal Justice
System
In an open letter to the California State Senate, then-Governor Arnold Schwarzenegger
explained why he was signing a bill changing the act of possessing less than one ounce of
marijuana from a misdemeanor to a civil infraction that did not allow for arrest or prosecution:
In this time of drastic budget cuts, prosecutors, defense attorneys, law
enforcement, and the courts cannot afford to expend limited resources prosecuting
a crime that carries the same punishment as a traffic ticket. As noted by the
Judicial Council in its support of this measure, the appointment of counsel and the
availability of a jury trial should be reserved for defendants who are facing loss of
life, liberty, or property greater than $100.230
In 2009, the year before California passed this new law, more than 60,000 individuals passed
through the criminal justice system on minor marijuana possession charges.231 In Massachusetts,
the move of minor marijuana possession from the criminal justice system to the civil infraction
system came by way of voter ballot initiative.232 A similar move is under consideration in
Hawaii.233 Driven by the stark fiscal reality of the high costs of low-level prosecutions in hard
economic times, other states and localities have also moved certain misdemeanors out of the
costly criminal justice system. For example, keeping the misdemeanor of driving with a
suspended license out of the criminal justice system offers significant costs savings. A recent
national report noted how “driving offenses, particularly the offenses equivalent to driving with a
suspended license, make up an extraordinary proportion of the misdemeanor caseloads in many
jurisdictions.”234 In addition, “Most of these [driving while suspended] charges result from the
failure to pay fines or fees, such as tickets for a broken tail light or not having insurance, parking
tickets, or even failure to pay child support.”235 In one Washington county, of the twenty-nine
misdemeanor cases heard on a single day, forty-one percent were charges of driving with a
suspended license.236 The unnecessarily large amount of criminal justice resources that many
jurisdictions devote to such cases has led to some creative solutions. In King County,
Washington, the prosecutor, defender office, lower court, county executive, and county council
230

Letter from Arnold Schwarzenegger, Governor of Cal,, to the Members of the Cal. State Senate (Sept. 30, 2010),
available at http://www.salem-news.com/articles/october012010/schwarzenegger-marijuana.php. Under previous
California law, possession of such small amounts of marijuana was only punishable by fine, but processed in
criminal court. The new law took such cases out of criminal courts, and made possession of less than one ounce a
civil offense. CAL. HEALTH & SAFETY CODE § 11357 (West 2010). Voters later disapproved — by a margin of 54%
to 46% - a ballot measure fully decriminalizing marijuana possession under California law. See Miguel Helft,
Election Results 2010: California, N.Y. TIMES, available at
http://elections.nytimes.com/2010/results/california?scp=3&sq=hawaii%20marijuana%20&st=cse, although the new
state law already did much of the work of that ballot measure by moving such cases into the civil system.
231
See Table 4a: Total Misdemeanor Arrests, ST. CAL. DEP’T JUST., (2009),
http://stats.doj.ca.gov/cjsc_stats/prof09/00/4A.htm.
232
See David Abel, Voters Approve Marijuana Law Change, THE BOS. GLOBE, Nov. 5, 2008, at B6, available at
http://www.boston.com/news/local/massachusetts/articles/2008/11/05/voters_approve_marijuana_law_change/.
233
See Senate Approves Marijuana Decriminalization, HAW. REP. (Mar. 8, 2011),
http://www.hawaiireporter.com/senate-approves-marijuana-decriminalization/123 (describing how bill to reduce
possession of small amounts of marijuana to civil infraction passed Senate and was sent to the House of
Representatives).
234
MINOR CRIMES, MASSIVE WASTE, supra note 12, at 28.
235
Id. at 26.
236
Id. at 25.

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worked together to keep such driving cases out of the criminal justice system. The program they
created allowed individuals to work off the underlying fine that led to the suspension in
exchange for dismissal of the criminal charges. A study of the early months of the program
showed a reduction of eighty-four percent in prosecutorial filings in suspension cases, and a
reduction of twenty-four percent in jail costs.237
The potential savings from such diversion and decriminalization is enormous. Federal
Bureau of Investigation statistics for 2009 show that more than forty-five percent of all drug
arrests in the United States were for marijuana possession.238 In that same year, “there were
8,067 gambling arrests, 26,380 vagrancy arrests, 471,727 drunkenness arrests, 518,374
disorderly conduct arrests, and 89,733 curfew and loitering arrests.” 239 If significant numbers of
these low-level misdemeanors are moved out of the criminal justice system, there is potential for
better levels of representation in those misdemeanor cases that remain. However, such potential
can only be realized if decriminalization does not imply cuts to public defense budgets on the
theory that less funding is needed due to fewer cases in the system. States and localities should
see this as an opportunity to save money in some parts of the system — lower court and jail costs
— with a concomitant opportunity to focus defense resources on the many individuals still facing
misdemeanor charges.
Raising the bar on misdemeanor representation through such reforms as workload caps,
avoiding guilty pleas at first appearances, and more investigative resources undoubtedly requires
additional resources, or at least the reallocation of existing resources. However, there are
significant long-term cost savings when higher quality representation leads to fewer wrongful
convictions, unnecessary collateral consequences, and unnecessary incarceration.240 Despite
some limited inroads to move some low-level offenses to diversion programs or the civil justice
system, legislators’ perceived need to be “tough on crime,” as well as their belief that any
concession in the criminal justice realm will be seen as “weak,” makes decriminalization an
unlikely route for true reform of misdemeanor representation.241 The bottom line is if the State
wants to continue to prosecute misdemeanor offenses in great number, then it must find a way to
provide for effective assistance of counsel in these cases. Otherwise defenders are put in a
position where they are unable to fulfill their constitutional, professional, and ethical duty to
provide adequate assistance to clients charged with misdemeanor crimes.
The real and perceived obstacles to legislative change highlight the need for judicial reform.
The next section discusses the important role that courts have to play in advancing standards for
adequate representation in the nation’s lower courts.

237

Id. at 28.
See DIVERTING AND RECLASSIFYING MISDEMEANORS, supra note 73, at 1-3; see also id. at 1 (“In some courts, the
combination of [the three misdemeanors of] driving with a suspended license, possession of marijuana, and minor in
possession of alcohol cases can total between 40% and 50% of the caseload.”).
239
Id. at 3.
240
See generally MINOR CRIMES, MASSIVE WASTE, supra note 12 (describing the high costs that deficient
representation on misdemeanors may have on indigent defendants and their communities).
241
See Erik Luna, The Overcriminalization Phenomenon, 54 AM. U. L. REV. 703, 719 (2005) ("Conventional
wisdom suggests that appearing tough on crime wins elections.").
238

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B. The Role of Courts as Provocateurs
Numerous scholars have described the critical dialogue that occurs between different
institutions in shaping constitutional norms.242 Professor Erik Luna has examined one facet of
that dialogue — that of courts providing “constitutional road maps” to legislatures— in the
context of criminal justice jurisprudence.243 One example of such road mapping can be seen in
City of Chicago v. Morales, where the Supreme Court struck down a city ordinance
“prohibit[ing] ‘criminal street gang members’ from ‘loitering’ with one another or with other
persons in any public place.”244 As Luna notes, “Despite agreeing that the gang-loitering
ordinance was unconstitutional, O'Connor suggested that Chicago had lawful alternatives at its
disposal. Her concurrence then sketched out potential statutory provisions that would survive
judicial scrutiny, offering a constitutional road map for lawmakers to follow in reenacting the
ordinance.”245
There is a similar road mapping role for courts to play in answering the misdemeanor
representation crisis and addressing the need for misdemeanor standards of representation. The
late Professor William Stuntz outlined one such potential road map relating to adequate funding
for indigent defense, noting how “ensuring an adequate quantity of representation . . . is an
achievable goal — and raising quantity tends to raise quality as well.”246 Recognizing the
problem of judges essentially setting budget lines to mandate adequate funding, Stunz instead
proposed a system of “penalty defaults” under which:
[I]n all jurisdictions that set up expert commissions to recommend appropriate
funding for indigent criminal defense and then follow those recommendations,
ineffective assistance doctrine will not apply. Elsewhere, ineffective assistance
standards will be ratcheted up sharply. If this default rule applied, state legislators
would have an incentive to establish sensible processes for fixing defense
budgets, and room to experiment with different funding patterns — more money
for defense lawyers in some jurisdictions, more money for investigators or
defense crime labs in others.247
Although this is just one example of a potential road map for legislatures, there are a number of
areas relating to misdemeanor representation in which courts might provoke legislatures and
professional organizations to set standards. One such area is caseloads, with some defenders
recently refusing to take new cases because of high caseloads, and states passing or considering
caseload caps.248 Here, courts could rely on national or local caseload recommendations in
examining individual or systemic claims of ineffective assistance.249 For example, if an
individual claimed ineffective assistance based on counsel’s failure to meet him prior to a trial
appearance, the court might examine the caseload of the defender at the time of the individual’s
representation and apply a rebuttable presumption of ineffectiveness if caseload numbers

242

See, e.g., Erik Luna, Constitutional Road Maps, 90 J. CRIM. L. & CRIMINOLOGY 1125, 1173-85 (2000) (providing
“an overview of the leading theories of interbranch dialogue”).
243
Id.
244
City of Chi. v. Morales, 527 U.S. 41, 45-46 (1999).
245
Luna, supra note 242 at 1128.
246
William Stunz, The Political Constitution of Criminal Justice, 119 HARV. L. REV. 780, 837 (2006).
247
Id.
248
See supra notes 71-72 and accompanying text.
249
See supra note 78 and accompanying text.

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exceeded recommended standards. A few courts have already used such rebuttable presumptions
in cases challenging the constitutionality of an indigent defender system. 250
These examples illustrate the interconnected nature of any discussion about adequate
standards for misdemeanor representation. There are different institutional competencies, and
thus different potential responses, that courts, legislatures, defender offices, professional
organizations, and others might bring to the misdemeanor representation crisis and the lack of
standards. However, there must also be dialogue between those who fund criminal defense,
examine its adequacy, write aspirational standards, and carry out the actual representation.
Courts are responsible for defining the constitutional right to effective assistance of counsel,
but, as set out in section II(B)(1), courts have yet to develop a body of law defining the right in
the misdemeanor context. Despite numerous structural obstacles to an ineffective-assistance
jurisprudence for misdemeanor cases, some courts have the opportunity to review such claims.
In doing so, there are two issues that courts must decide whether and how to use in standards for
misdemeanor ineffective-assistance: local norms of practice and resource deprivation. Localism
and resource deprivation issues arise in ineffective assistance determinations because three
factors inform the analysis of alleged attorney deficiencies: (1) prevailing professional standards;
(2) the norms of practice at the time of the representation in the particular jurisdiction of that
representation; and (3) court decisions applying these first two factors to a particular factual
context, thus giving content to application of the norms.251 As Part II reviews, prevailing
professional standards offer insufficient guidance for misdemeanor representation for the first
factor. Part II also notes how there are few cases to provide content from the third factor. This
section first discusses the structural obstacles to review of misdemeanor ineffective-assistance
claims, as well several potential reforms to ameliorate them, in order to gain guidance from the
third factor. However, if courts do review more misdemeanor ineffective-assistance claims, they
must grapple with issues of localism and resource deprivation. This section thus concludes by
considering the many pitfalls and certain benefits of judicial consideration of the most
problematic aspects of the second factor: localism and resource deprivation.
1. Structural Impediments to Development of Misdemeanor Ineffective Assistance
Jurisprudence and Suggestions for Reform
Supreme Court precedent “make[s] clear that one searching for the content of the reasonably
effective assistance standard must look primarily to judicial decisions applying that standard.” 252
For example, Padilla v. Kentucky addressed the right to effective assistance in the area of client
counseling about collateral consequences, and Wiggins v. Smith informed attorneys that effective
assistance includes the duty to investigate mitigation evidence in capital cases. 253 In areas that
the Supreme Court has not directly examined, lower court decisions might provide this
250

See, e.g., State v. Smith, 681 P.2d 1374 (Ariz. 1984) (holding that the excessive caseloads of defenders lead to
due process and right-to counsel violations); State v. Peart, 621 So. 2d 780 (La. 1993) (finding ineffective assistance
of counsel because the attorney’s excessive caseloads prevented adequate representation); see also supra notes 177179 and accompanying text.
251
See, e.g., Wiggins v. Smith, 539 U.S. 510 (2003) (considering prevailing professional standards, local practice,
and prior capital mitigation precedent in granting claim of ineffective assistance in capital case).
252
LAFAVE, supra note 144, at 664 (referring to Nix v. Whiteside, 475 U.S. 157 (1986), and Strickland v.
Washington, 466 U.S. 668 (1984)).
253
See Padilla v. Kentucky, 130 U.S. 1473, 1485 (2010); Wiggins, 539 U.S. at 524; see also supra notes 167, 192
and accompanying text (discussing trainings in the wake of Padilla and Wiggins).

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content,254 giving meaning to Strickland’s purposely vague and deferential standard of providing
reasonably effective assistance of counsel.255
a. Structural Impediments
In order for courts to provide the factual context that gives content to the vague ineffective
assistance test, misdemeanor cases involving particular areas of defense counsel behavior must
work their way up the appellate ladder. However, not many misdemeanor cases make their way
up this ladder, so that there is little opportunity for courts to apply general ineffective-assistance
norms to misdemeanor-specific facts.256 There are a number of reasons for the lack of appellate
review in misdemeanor cases.
Perhaps the main reason courts fail to review misdemeanor cases is that the vast majority of
misdemeanor convictions come after a guilty plea. For example, in New York City in 2003, less
than one-third of one percent of misdemeanor convictions resulted from a trial verdict. 257 In
addition, individuals who plead guilty in the fast-paced, high-volume lower criminal courts may
not even be aware of the right to appeal, or of the need to file a notice of appeal within a short
time period after conviction. 258 Even if a defendant is aware of the right to appeal, prosecutors
sometimes insist on a waiver of the right as part of any plea bargain.259 Individuals who get past
254

See, e.g., Boria v. Keane, 99 F.3d 492, 495 (2d Cir. 1996) (finding ineffective assistance of counsel where lawyer
failed to counsel defendant “that, although he never even suggested such a thought to the petitioner, it was [defense
counsel‘s] own view that his client‘s decision to reject the plea bargain was suicidal”).
255
See supra note 176 and accompanying text (discussing the need for deference in determining attorney
competence); supra Part II.B.2.
256
See, e.g., SCALIA, supra note 185, at 2-3 (noting that in 1999, there were only five appeals for every 100
misdemeanor convictions in federal courts).
257
See Zeidman, supra note 27 at __; see also OFFICE OF COURT ADMIN., ANNUAL REPORT FOR THE TEXAS
JUDICIARY 48 (2009) (finding that only 1% of county court cases, which are predominantly misdemeanors, proceed
to trial). This trend is not exclusive to misdemeanors. Percentages of felony prosecutions that end in a trial verdict
have gone down from already low levels over the past few decades. See Ronald Wright & Marc Miller, Honesty and
Opacity in Charge Bargains, 55 STAN. L. REV. 1409, 1415-16 (2003) (noting that while by 2003 some states’
federal plea rates had increased over the past decade to 99.0%, the national federal trial rate was only 3.4% and
decreasing).
258
See OR. REV. STAT. § 138.071 (2011) (defendant must file notice of appeal within thirty days after the judgment
entered). A recent report on the state of indigent defense in Florida’s lower courts noted how “[a]fter sentencing at
arraignment, only 23.7% of defendants were advised of their right to an appeal, and only 23.2% the right to an
attorney for that appeal. In-custody defendants were less likely to be advised of their right to appeal than released
defendants.” See THREE-MINUTE JUSTICE, supra note 1, at 19. These troublingly low percentages were observed
despite a Florida Rule of Criminal Procedure requiring trial judges to inform defendants of their right to appeal. FLA.
R. CRIM. P. 3.670.
259
See, e.g., United States v. Jemison, 237 F.3d 911, 917 (7th Cir. 2001) (“An appellate waiver will be enforced if:
(1) its terms are clear and unambiguous; and (2) the record demonstrates that it was entered into ‘knowingly and
voluntarily.’”). Such a waiver does not automatically foreclose a later claim of ineffective assistance. See, e.g.,
Costin v. United States, 588 F. Supp. 2d 280, 284 (D. Conn. 2008) (“[A] waiver is unenforceable if petitioner can
prove that, because her counsel's advice was ineffective, her waiver was not knowing and voluntary.”). However,
courts allowing such a claim to go forward may narrowly circumscribe the scope of review. See Parisi v. United
States, 529 F.3d 134, 138 (2d Cir. 2008) (noting that in analyzing ineffective-assistance claim where the defendant
waived the right to appeal, a court may only consider the process by which the defendant agreed to plead guilty and
thus may not consider any pre-plea events). In addition, once a defendant waives the right to appeal, and there is no
attorney assigned to handle the appeal, it is highly unlikely that anyone will review the case to determine if there is a
viable ineffectiveness claim. It is also unlikely that the defendant will file the requisite notice of intention to appeal.
See, e.g., OR. REV. STAT. § 138.071 (defendant must file notice of appeal within 30 days after the judgment entered).

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these obstacles will have long finished any sentence by the time any appeal would be heard, thus
undercutting the immediate incentive to revisit the underlying conviction.
In addition, any direct appeal of a misdemeanor conviction will rarely include consideration
of an ineffective-assistance claim. Direct appeal is limited to review of the trial court record,
which often does not contain evidence of the alleged incompetence of defense counsel,
particularly if the conviction came after a guilty plea.260 Thus, “almost all jurisdictions prefer
that ineffective assistance claims be presented on collateral attack,”261 where the petitioner can
develop a factual record through the petition and evidentiary hearings. In short, a defendant has
to get past direct appeal — where few misdemeanors go to begin with — and then develop a
record on collateral review.262
The first opportunity for most individuals convicted of a misdemeanor to raise an ineffectiveassistance claim is through a petition for post-conviction relief. Statutory and judicially created
impediments to post-conviction relief are extensive. The list is too long to document here, but a
few examples suffice to understand why one commentator recently noted that “[a]t enormous
expense, the system grants relief to almost nobody.”263 First, there is no federal constitutional
right to counsel on post-conviction review, so many petitioners proceed pro se.264 Second, both
federal and state habeas courts have numerous opportunities to find procedural default, such as
for a petitioner’s failure to raise an issue in an earlier proceeding.265 Third, the federal habeas
260

In many jurisdictions the same lawyer or organization that handled the trial will handle the appeal, and that
person or group is “unlikely to look to their own ineptitude in developing grounds for appeal.” KAMISAR ET AL.,
ADVANCED CRIMINAL PROCEDURE 143 (12th ed. 2008). An even more basic obstacle is that “a large number of
misdemeanor convictions take place in police or justice courts which are not courts of record. Without a drastic
change in the procedures of these courts, there would be no way” for the defendant to demonstrate error in the
original proceeding or reconstruct evidence lost in the intervening period. Nichols v. United States, 511 U.S. 738,
748 (1994).
261
See KAMISAR, supra note 262, at 142; see also United States v. Jeronimo, 398 F.3d 1149, 1155-56 (9th Cir. 2005)
(“[W]e will not remand a case from direct appeal for fact-finding related to an ineffective assistance of counsel
claim, but allow a defendant to pursue the issue in district court collateral proceedings.”) (citing United States v.
Reyes-Platero, 224 F.3d 1112, 1117 (9th Cir. 2000)).
262
See LAFAVE, supra note 144, at 1333 (“Every jurisdiction has one or more procedures through which defendants
can present post-appeal challenges to their convictions and sentences on at least limited grounds. In addition,
through the federal writ of habeas corpus, a state defendant may challenge his state conviction on federal
constitutional grounds in the federal courts. These procedures for presenting post-appeals challenges are commonly
described as ‘collateral remedies.’”).
263
Eve Brensike Primus, A Structural Vision of Habeas Corpus, 98 CALIF. L. REV. 1, 4 (2010) (referring to federal
habeas corpus review); see also id. at 9-12 (providing an excellent explanation of the myriad bars to federal habeas
corpus relief).
264
See Pennsylvania v. Finley, 481 U.S. 551, 555 (1987) (“We have never held that prisoners have a constitutional
right to counsel when mounting collateral attacks upon their convictions and we decline to so hold today.”). Some
states grant post-conviction counsel through statute, court rule, or at the court’s discretion, although in other
jurisdictions the right is limited to death-sentenced defendants. See Thomas M. Place, Deferring Ineffectiveness
Claims to Collateral Review: Ensuring Equal Access and a Right to Appoint Counsel, 98 KY. L.J. 301, 326 (2010)
(noting that the “majority of states appoint counsel in collateral proceedings in non-capital cases and thirty-three
states provide counsel in capital cases.”); see also Andrew Hammel, Diabolical Federalism: A Functional Critique
and Proposed Reconstruction of Death Penalty Federal Habeas, 39 AM. CRIM. L. REV. 1, app.A (2002) (providing
chart breaking down how, as of 2002, 34 states discretionarily provided post-conviction counsel, 13 states
guaranteed it, and 3 states did not provide for post-conviction counsel).
265
See, e.g., Martinez v. Schriro, 623 F.3d 731, 742-43 (9th Cir. 2010) (finding procedural default on federal habeas
corpus because defendant failed to raise ineffective-assistance claim in earlier state post-conviction proceeding, even
while acknowledging that post-conviction counsel may have been ineffective for so failing to raise that claim).
While there is no such state exhaustion requirement for individuals convicted in federal court, the overwhelming

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corpus statute as well as twenty-four state habeas statutes or rules have a jurisdictional
prerequisite that an individual filing a petition be “in custody.”266 Courts have found custody
where the individual seeking federal habeas review is imprisoned for the conviction, on parole or
probation, serving a suspended sentence, or under court-ordered treatment in the community.267
A person seeking post-conviction relief from a misdemeanor conviction will be long free of such
restraints. Although the Supreme Court has never directly ruled on the question of whether
severe collateral consequences (such as deportation) sufficiently restrain liberty to constitute
custody, language in related decisions “strongly suggests that such collateral effects would be
insufficient.”268 Given these obstacles, it is not surprising that a recent study of federal habeas
corpus litigation in the United States District Courts found, in a sample of 1512 non-capital
cases, only, “Five . . .had a misdemeanor as the most serious offense of conviction.”269
In the end, the prospects are stark even for those few petitioners able to pick through the
minefield of impediments to review of an ineffective-assistance claim; in noncapital federal
habeas petitions, judges grant relief in less than one percent of cases.270 These obstacles are a
central reason that one of the three sources for ineffective assistance norms271 — guidance from
judicial decisions — is underdeveloped and adds to the problem of a virtually non-existent
jurisprudence of misdemeanor ineffective assistance.
b. Suggestions for Avoidance of Structural Impediments, and Reform
There are several ways for courts and litigants to avoid obstacles to the development of a
body of law on misdemeanor ineffective assistance. One possibility is for state and federal
courts to include severe collateral consequences in their interpretation of the state or federal
habeas statutes’ “in custody” requirement. This would be timely given the current era of
growing and high-stakes collateral consequences,272 and the Supreme Court’s decision
majority of convictions come out of the state courts. See Matthew R. Durose & Patrick A. Langan, Felony Sentences
in State Courts, 2004, in U.S. DEP’T OF JUSTICE, BUREAU OF JUSTICE STATISTICS BULL. 1 (Ser. No. NCJ 215646,
2007), available at http://bjs.ojp.usdoj.gov/content/pub/pdf/fssc04.pdf (noting how in 2004, “94% of felony
convictions occurred in State courts, the remaining 6% in Federal courts”).
266
See 28 U.S.C. § 2254(a) (2010) (federal habeas statute); Place, supra note 264, at 327 n.203 (listing state statutes
and court rules).
267
See Wayne A. Logan, Federal Habeas in the Information Age, 85 MINN. L. REV. 147, 153 (2000) (citing cases).
268
Yale L. Rosenberg, The Federal Habeas Corpus Custody Decisions: Liberal Oasis or Conservative Prop, 23 AM.
J. CRIM. L. 99, 115 n.111 (1995) (discussing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)); see also Maleng v.
Cook, 490 U.S. 488, 491 (1989) (“[O]nce the sentence imposed for a conviction has completely expired, the
collateral consequences of that conviction are not in themselves sufficient to render an individual ‘in custody’ for the
purposes of a habeas attack upon it.”). But see infra text accompanying notes 273-275, arguing that courts deciding
whether severe collateral consequences satisfy the “in custody” requirement should interpret the requirement
liberally, and in light of the Supreme Court’s recent Padilla decision.
269
NANCY J. KING, FRED L. CHEESMAN II & BRIAN J. OSTROM, FINAL TECHNICAL REPORT: HABEAS LITIGATION IN
U.S. DISTRICT COURTS 20 (2007), available at http:// www.ncjrs.gov/pdffiles1/nij/grants/219559.pdf.
270
See Joseph L. Hoffmann & Nancy J. King, Rethinking the Federal Role in State Criminal Justice, 84 N.Y.U. L.
REV. 791, 809 (2009); see also Murray v. Giarratano, 492 U.S. 1, 23-24 (1989) (“Federal habeas courts granted
relief in only 0.25% to 7% of noncapital cases in recent years.”). In addition, as explored above there are fewer trials
in misdemeanor cases, and “[p]leas account for nearly 95% of all criminal convictions. But they account for only
approximately 30% of the habeas petitions filed.” Padilla v. Kentucky, 130 U.S. 1473, 1485 (2010) (citing VICTOR
E. FLANGO, NAT’L CTR. FOR STATE COURTS, HABEAS CORPUS IN STATE AND FEDERAL COURTS 36-38 (1994)).
271
The other two sources being prevailing professional norms and local practice. See supra text accompanying note
261 (describing three factors that inform the analysis of alleged attorney deficiencies).
272
See supra Part I.B.

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establishing a defendant’s right to information about deportation before any guilty plea in the
wake of Padilla v. Kentucky.273 Padilla is notable for Justice Stevens’ discussion of the severe
effect that deportation can have on an individual’s life, and the Court’s “view that, as a matter of
federal law, deportation is an integral part-indeed, sometimes the most important part-of the
penalty that may be imposed on noncitizen defendants who plead guilty to specified crimes.”274
As a number of courts and commentators have noted in the wake of Padilla, surely other
consequences are equally severe for some defendants and thus similarly integral to the criminal
penalty.275 A broader interpretation of the “in custody” requirement would open this avenue up
to consideration of claims of ineffective assistance where defense counsel failed to warn about
deportation or other several collateral consequences.
Alternatively, courts might follow the Third Circuit’s example in its recent approval of the
federal writ of coram nobis as an avenue of relief for individuals no longer “in custody” and thus
unable to access federal habeas corpus relief. 276 In United States v. Orocio, Gerald Orocio pled
guilty in federal court to simple possession of a controlled substance in exchange for a sentence
of time served plus two years of supervised probation after turning down an earlier offer to plead
guilty to drug trafficking with a ten-year sentence. After completing his probation, Orocio
received notice that the government had initiated removal proceedings to send him back to his
birth country of the Philippines.277 The Third Circuit granted Orocio’s petition for relief based on
counsel’s failure to warn him about the deportation consequence of his plea, noting how the
federal writ of error coram nobis “is used to attack allegedly invalid convictions which have
continuing consequences, when the petitioner has served his sentence and is no longer ‘in
custody’ for purposes of [the federal habeas corpus statute].”278
Some jurisdictions allow state coram nobis review for ineffective assistance of counsel
claims that cannot otherwise be litigated,279 while others have effectively closed it as an avenue
for such review.280 At least one state court has allowed use of the writ in the context of a

273

130 S. Ct. 1473 (2010).
Id. at 1480.
275
See, e.g., Taylor v. State, 304 Ga. App. 878, 884 (Ct. App. 2010) (applying Padilla’s duty to warn to
consequence of sex offender registration); see also Margaret Colgate Love, Collateral Consequences after Padilla v.
Kentucky: From Punishment to Regulation, 30 U. ST. LOUIS L. REV. (2011) (manuscript at 24-25), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1883809.
276
United States v. Orocio, 645 F.3d 630, 635 n.4 (3d Cir. 2011) (quoting United States v. Stoneman, 870 F.2d 102,
105-06 (3d Cir. 1989).
277
Id. at 634.
278
Id. at 647, n.4; see also 28 U.S.C. § 1651(a) (2011) (empowering a federal court, under All Writs Act, to issue a
writ of error coram nobis); Hirabayashi v. United States, 828 F.2d 591, 604 (9th Cir. 1987) (noting that a coram
nobis “petitioner must show the following to qualify for coram nobis relief: (1) a more usual remedy is not
available; (2) valid reasons exist for not attacking the conviction earlier; (3) adverse consequences exist from the
conviction sufficient to satisfy the case or controversy requirement of Article III; and (4) the error is of the most
fundamental character”); United States v. Kwan, 407 F.3d 1005, 1011 (9th Cir. 2005) (same).
279
See, e.g., Thompson v. State, 525 So. 2d 820, 830 (Ala. 1985) (“Coram nobis, therefore, can now be used to raise
claims of inadequate assistance of counsel”).
280
See, e.g., People v. Gallardo, 77 Cal. App. 4th 971, 987 (Ct. App. 2000) (“A claim that the defendant was
deprived of effective representation of counsel is not an appropriate basis for relief by writ of coram nobis.”);
Commonwealth v. Morris, 2011 WL 111692, at *5 (Va. 2011) (“[A] claim of ineffective assistance of counsel does
not constitute an error of fact for which coram nobis will lie . . . because such a claim would not ‘have prevented
rendition of the judgment.’”).
274

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misdemeanor conviction.281 Just as courts should ease the “in custody” requirement to allow for
state and federal habeas claims, courts should allow more liberal use of the writ of coram nobis
to generate critical jurisprudential development of misdemeanor effective assistance.
More ambitious solutions can be found in the recent scholarly literature condemning the
current highly restrictive and wasteful state of federal and state habeas corpus. Proposing a
practical solution to two related criminal procedure problems, Professor Eve Brensike Primus
has called for the “relocation” of ineffective assistance claims from post-conviction review to
direct appeal.282 The first problems she identifies are the structural impediments discussed above.
Second, Primus describes the waste of resources during direct review of criminal convictions,
where the defendant has a constitutional right to counsel and, therefore, where public funds for a
largely indigent population are directed. The waste comes from the inability of appellate
attorneys to raise issues on direct review that the trial attorney failed to preserve, so that “public
defenders routinely spend their time arguing frivolous appeals.”283 Her solution to these dual,
related problems is to allow attorneys handling direct appeals to raise ineffective assistance
claims and to ease up on rules barring such attorneys from looking outside the trial record to
support such claims.284 Primus’s relocation proposal is particularly intriguing for misdemeanor
representation,285 and such relocation would surely benefit the anemic jurisprudence of
ineffective assistance in misdemeanor cases.
In another recent structural proposal, Professors Nancy King and Joseph Hoffman call for “a
solution that would allow the states to shift dollars that they now waste at the back end forward
to trial and appeal at the front end, where those resources can make the kind of meaningful
difference for the accused that Strickland and post-conviction review never could.”286 This
reallocation of resources might, like Primus’s relocation proposal, advance ineffective assistance
jurisprudence in misdemeanor cases. King and Hoffman propose a quid pro quo under which a
state that “takes specified steps to effectively reform its system of defense representation at the
trial and appellate level” would get the benefit of “scaled back” federal habeas review as well as
federal funds for providing adequate front-end representation. In addition to this carrot, they
propose the stick of expanded federal habeas review in jurisdictions that fail to undertake such
“front-end reforms.”287 Although it is not clear that King and Hoffman would include nonfelonies in their proposal due to financial constraints,288 such incentives for front-end reforms,
281

See Dequesada v. State, 444 So. 2d 575, 576 (Fla. Dist. Ct. App. 1984). Unfortunately, Desquesada’s review of
the merits of the underlying ineffective-assistance claim was limited to one sentence, thus failing to advance that
jurisdiction’s norms for such representation. See id. at 576-77 (“[R]eview of Desquesada’s allegations of ineffective
assistance of counsel, as well as a perusal of the attached affidavits and portions of the trial transcript which he
submitted . . . shows that the allegations are substantively insufficient”).
282
Eve Brensike Primus, Structural Reform in Criminal Defense: Relocating Ineffective Assistance of Counsel
Claims, 92 CORNELL L. REV. 679, 731 (2007).
283
Id. at 682; see also id. at 679 n.d1 (noting that Primus was a public appellate defender in Maryland).
284
Id. at 682.
285
Id. at 694-95 (noting “the grim reality is that the performance of trial counsel in almost all misdemeanor and
many felony cases is largely unchecked,” and that ineffectiveness caused by the failure to provide adequate defender
resources “appears to be at its zenith for precisely those defendants who are least likely to pursue ineffective
assistance of counsel claims”).
286
Nancy J. King & Joseph L. Hoffman, Envisioning Post-Conviction Review for the Twenty-First Century, 78
MISS. L.J. 433, 441 (2008).
287
Id. at 442.
288
See id. at 447 (stating that “[a] third revenue source may be needed because the cost of providing adequate
counsel to all of those facing felony charges probably dwarfs, in most states, the present cost of post-conviction
review for those locked up long enough to seek it” (emphasis added)).

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and penalties for lack of reforms, would be particularly significant in the arena of misdemeanor
representation.
A critical component of front-end reform to indigent defense is the willingness of those
involved in ineffective assistance, including defenders, prosecutors, and judges, to act. Defenders
in a number of jurisdictions, including Miami-Dade County, Kentucky, Minnesota, Missouri,
Maryland, Arizona, and Tennessee, have cited their professional and constitutional duty to
provide effective assistance in turning down assignments to handle more cases or suing to reduce
excessive caseloads. 289 These defender offices acted despite the difficulties for defense lawyers
in turning away clients in need, and in challenging the very system within which they work.
However, “With public defender workloads growing while funding is being reduced, more
offices may soon follow their lead.”290 Judges have an important role to play in these situations,
both in dealing with the defenders in their courtrooms who refuse to accept further cases, and in
analyzing the issues in jurisdictions where the crisis has led to individual or class action lawsuits
challenging the validity of the indigent defender system.291 In addition, prosecutors often witness
off-the-record ineffective assistance in dealing with defense counsel during negotiations or many
of the other points of contact outside the courtroom where the parties might discuss a client’s
case (such as during the discovery process).292 Although the potential for adversarial advantage
may be tempting, rules of professional responsibility and constitutional constraints bind
prosecutors where they have knowledge of inadequate assistance of counsel.293 Prosecutorial
identification of ineffective assistance at the trial level, which would help enable judges to act
immediately, offers another avenue for front-end reform and thus helps avoid the significant
obstacles to post-conviction litigation of ineffective assistance in misdemeanor cases.
Finally, in what would perhaps be the most simple, effective, and cheapest way to move
review of inadequate counsel to the front-end of the criminal justice process, judges should
follow the example of the trial court judge who stated: “If a defendant appearing in my
courtroom is not being provided with the effective assistance of counsel, then I am obligated to

289

See, e.g., State v. Bowens, 39 So. 3d 479 (Fla. App. 2010) (certifying the public defender office’s claim of
conflict-of-interest arising from excessive caseloads to the Florida Supreme Court); Jeff Adachi, Budget Cuts
Threaten Promise of Equal Justice, THE RECORDER, Feb. 13, 2009 (listing other jurisdictions), available at
http://sfpublicdefender.org/media/2009/04/budget-cuts-threaten-promise-of-equal-justice/; see also AM. BAR ASS’N,
TEN PRINCIPLES OF A PUBLIC DEFENSE DELIVERY SYSTEM 1 (2002) (Principle One on need for independent public
defense function), available at
http://www.americanbar.org/content/dam/aba/migrated/legalservices/downloads/sclaid/indigentdefense/tenprinciples
booklet.authcheckdam.pdf; Zeidman, supra note 72, at 6 (describing recent caseload cap initiative in New York
State)
290
Adachi, supra note 289.
291
See Drinan, supra note 177, at 439-43 (discussing such systemic challenges).
292
See, e.g., Stanley Z. Fisher, In Search of the Virtuous Prosecutor: A Conceptual Framework, 15 AM. J. CRIM. L.
197, 222 n. 124 (1988) (stating that "prosecutors are uniquely positioned to observe incompetent and lazy
representation of defendants”); Vanessa Merton, What Do You Do When You Meet A "Walking Violation Of The
Sixth Amendment" If You're Trying To Put That Lawyer's Client In Jail?, 69 FORDHAM L. REV. 997, 1005-17 (2000)
(describing a prosecutor's real-life experience when she witnessed ineffective representation of a defendant).
293
See, e.g., MODEL RULES OF PROF'L CONDUCT R. 8.3(a) (2002) (“[L]awyer who knows that another lawyer has
committed a violation of the Rules of Professional Conduct that raises a substantial question as to that lawyer's
honesty, trustworthiness or fitness as a lawyer in other respects, shall inform the appropriate professional
authority.”)

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intervene and protect that defendant’s rights.”294 Unfortunately, many judges witness ineffective
assistance at the misdemeanor trial level on a regular basis. Judges might confront the same
issues of lack of independence that plague many defender offices. However, trial courts could
have great impact on the front-end of delivery of defense services by being proactive when
ineffective assistance unfolds in front of them and fulfilling their responsibility to identify and
ameliorate constitutional violations.295 The deference to strategic decision-making that the
Supreme Court requires in its ineffective assistance jurisprudence does not extend to the trial
judge, who has the right and responsibility to ask about quality of representation.296 This may
take a few extra minutes for each case, but performing such inquiries on the record could
encourage better representation, help define acceptable levels of practice, and save resources by
uncovering ineffectiveness at the front end.
2. The Problem of Resource Deprivation Driving Constitutional Rules
In ineffective-assistance cases that explore the attorney competence prong of Strickland, the
dominant principle is that lack of diligence is a violation whereas simple bad judgment by
defense counsel is deemed “strategic decision-making.” 297 This creates real cause for concern in
misdemeanor cases, where there is often no diligence at all. Can it ever be reasonable strategy
for defense counsel to meet a client for the first time in court, spend a few minutes discussing a
plea bargain with him while everyone waits impatiently, and then stand next to him as he enters a
“negotiated” guilty plea?298 The stark situation begs the question: can triage that is necessary
under the current criminal justice system be part of the effective-assistance inquiry, thus
dragging standards down to the unacceptable levels that under-resourcing creates?299
294

COMM’N ON THE FUTURE OF INDIGENT DEF. SERVS., FINAL REPORT TO THE CHIEF JUDGE OF THE STATE OF NEW
YORK add. (2006), available at http://www.courts.state.ny.us/ip/indigentdefensecommission/IndigentDefenseCommission_report06.pdf (Additional Commentary of Hon. Patricia D. Marks).
295
See generally Richard Klein, The Relationship of the Court and DC: The Impact on Competent Representation
and Proposals for Reform, 29 B.C. L. REV. 531 (1988) (discussing various techniques that trial judges might use to
evaluate defense counsel’s degree of pretrial preparation, including pretrial conferences and the use of a pretrial
worksheet for core defense tasks, in part to create a record for any post-plea ineffective assistance claims).
296
See Mary Sue Backus, The Adversary System is Dead; Long Live the Adversary System: The Trial Judge as the
Great Equalizer in Criminal Trials, 2008 MICH. ST. L. REV. 945, 951 (“This article argues that trial court judges
must step into the breach and restore the integrity and fairness of the adversary system and, ultimately, the
legitimacy of criminal convictions. The trial judge's role in safeguarding the rights of the accused and the interests of
the public is not simply a professional duty, but an ethical obligation. Trial judges are uniquely situated to identify
substandard defense representation.”); Fred C. Zacharias & Bruce A. Green, Rationalizing Judicial Regulation of
Lawyers, 70 OHIO ST. L. J. 73, 121-22 (2009).
297
See Strickland v. Washington, 466 U.S. 668, 689 (1984) (“[A] court must indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must
overcome the presumption that, under the circumstances, the challenged action ‘might be considered sound trial
strategy.’”).
298
See Stephen J. Schulhofer, Effective Assistance on the Assembly Line, 14 N.Y.U. REV. L. & SOC. CHANGE 137,
144 (1986) (contending that a “hurried conference” with the defendant and a near universal loss of pretrial discovery
in misdemeanor cases make it impossible to view a plea bargain as a “plausible compromise by fully-informed
decision makers”); see also GIDEON’S BROKEN PROMISE, supra note 18, at 16 (describing the “meet them and plead
them” method of representation in various states); RACE TO THE BOTTOM, supra note 2, at 15-22 (describing
Michigan situation); Zeidman, supra note 27 at 336-43 (describing New York City).
299
See Brown, supra note 28 at 821 n.78 (2004) (discussing how the allocation of public defender resources is
analogous to triage); Mitchell, supra note 27 at 1239-48 (discussing how the realities of the lower court system
require public defenders to engage in “the practice of triage”); see also GIDEON’S BROKEN PROMISE, supra note 18,

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Dissenting in Strickland, Justice Marshall raised critical questions about implementing the
two-prong test announced in that case. Justice Marshall observed that the majority failed to
clarify whether the reasonableness of attorney performance should be judged in relation to norms
of “adequately paid retained lawyer” or overburdened appointed counsel.300 This point is
particularly potent in the context of misdemeanor cases, where the overburden falls hard. Courts
assessing the effectiveness of a misdemeanor attorney must decide whether to judge that
performance as reasonable under the particular circumstances present in that jurisdiction, which
might include high workloads and few resources, or instead as reasonable under adequatelyresourced defense counsel.
Although not in the misdemeanor context, a number of courts have touched on this resource
issue in the wake of Strickland and have taken counsel’s time limitations as well as office
resources into account in deciding what qualifies as effective assistance. For example, the
Fourth Circuit noted how “the reasonableness of an investigation . . . must be considered in light
of the scarcity of counsel's time and resources in preparing for a sentencing hearing[.]”301 In
another decision, granting an ineffective-assistance claim for failure to pursue a viable
affirmative defense, the Fourth Circuit emphasized that “in this case, counsel's deficient
performance did not . . . involve a difficult choice on how to allocate precious legal
resources.”302 This implies that resource allocation could be part of an ineffective-assistance
analysis, and the court’s choice of words suggests that such an analysis might excuse or give
more leeway to decisions made in the face of limited resources.
In Harrington v. Richter, the Supreme Court stated that “[c]ounsel was entitled to
formulate a strategy that was reasonable at the time and to balance limited resources in accord
with effective trial tactics and strategies.”303 However, both Harrington and the Circuit Court of
Appeals decisions based their holdings of failure to show ineffective assistance largely on
findings that defense counsel had sound strategic reasons to avoid the particular line of
investigation.304 Thus, courts have generally avoided grappling directly with issues of resource
deprivation.
Taking caseloads and resources into account would be particularly problematic with
misdemeanors, where clients often get the short end of the limited-resources stick. The reality of
the lower courts calls into question the firmly entrenched deference to attorneys’ strategic
decision-making in Sixth Amendment jurisprudence, at least insofar as strategy is analyzed as
at 7-8, 17-18 (discussing the realities of overburdened defense counsel straddled with excessive caseloads); Jane
Fritsch & Matthew Purdy, Defenders by Default: A Special Report: Option to Legal Aid for Poor Leaves New
Yorkers at Risk, N.Y. T IMES, May 23, 1994, at A1 (detailing problems with New York’s “assigned counsel” system
for some indigent defendants).
300
Strickland, 466 U.S. at 708 (Marshall, J., dissenting).
301
McWee v. Weldon, 283 F.3d 179, 188 (4th Cir.), cert. denied, 537 U.S. 893 (2002); see also Rogers v. Zant, 13
F.3d 384, 387 (11th Cir. 1994) (stating that whether a decision not to conduct a particular investigation was
reasonable “reflects the reality that lawyers do not enjoy the benefit of endless time, energy or financial resources”).
302
United States v. Mooney, 497 F.3d 397, 404 (4th Cir. 2007); see also Mahaffey v. Page, 151 F.3d 671, 685 (7th
Cir.) (citations omitted) (articulating the need to “consider the limited time and resources that defense lawyers have
in preparing for a sentencing hearing”), vacated in part on other grounds, 162 F.3d 481 (7th Cir. 1998).
303
Harrington v. Richter, 131 S. Ct. 770, 789 (2011).
304
In McWee, for example, counsel did not fully explore their client’s family mental health history, but counsel had
also decided on a sentencing case theory that “primarily focused on McWee's positive attributes and the basically
good life that he led before he met George Wade Scott, his accomplice.” McWee v. Weldon, 283 F.3d at 189. The
Court noted that a focus on the myriad mental health problems in Harrington’s family could well have undermined
the chosen sentencing theory. Id.

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going beyond the one case under review. The circuit court decisions noted above clearly
contemplated strategy to include the need to make hard resource decisions based on caseloads
and funds; strategy was not specific to the case but rather to the attorney, the defender office, or
the jurisdiction. Such an approach makes it constitutionally permissible to shortchange one
client if such action is intended to benefit another client. For misdemeanor defendants, low on
any resource-deprived attorney’s or office’s list, everyone else comes first. While one might
argue that the Supreme Court’s ineffective-assistance jurisprudence is concerned with strategy
within the particular case, the Court has never explicitly endorsed such an approach and, thus,
has never dealt with Justice Marshall’s legitimate concerns about resource limits.
To bring the resource issue to its most troubling conclusion, if strategy is not case-specific,
then a state or county legislature may purposely underfund lower-level cases, or even statutorily
mandate that fewer resources go to such cases. Is it principled to allow inadequate representation
where the legislature has so underfunded criminal defense that high caseloads and low resources
are inevitable? Surely, having this built into the jurisprudence of effective assistance is a
perverse incentive in an already besieged area.
3. The “Localism” Problem in Ineffective-Assistance Jurisprudence
Courts consider three sources in analyzing an ineffective-assistance claim: prevailing
professional standards, norms of local practice, and precedent.305 With this second factor, norms
of practice in the particular jurisdiction, the Supreme Court has directed courts to consider both
“where” the case on review occurred and “when” the case was litigated in determining if a
particular lawyer rose to the expected level of competence.306 Thus, in Wiggins v. Smith, the
Supreme Court looked at Maryland practice at the time of the mitigation phase of Wiggins’ death
penalty trial as part of the equation for determining whether Wiggins’ attorneys provided
ineffective assistance.307 Although the result in Wiggins was that counsel had to rise to the level
of local practice to meet the constitutional floor for effective assistance, this will not always be
the case. Rather, poor representation might be excused as the local norm. For example, a
defendant in Maryland would enjoy better representation than a defendant in Alabama if there
were more resources — and thus a higher standard — in Maryland. Even within one state, under
this approach someone charged with a crime in a city could be constitutionally entitled to a
higher level of representation than someone charged with that same crime in a rural county.
The Court has not explained why it relies in part on local norms in assessing counsel’s
competency. Certainly there are a number of potential benefits to incorporating local practice
norms into the constitutional definition of effective assistance (referred to here as “localism”).
This section briefly considers those benefits, but explains why they are either misguided or can
be achieved in a better way.
One major argument for localism is that it allows for greater flexibility in recognizing that
different jurisdictions have different formal rules of procedure. Local culture — both of the
jurisdiction generally and of the local courthouse — also affects how lawyers interact with other
305

See supra text accompanying note 251.
See Wiggins v. Smith, 539 U.S. 510, 511 (2003) (“Standard practice in Maryland capital cases at that time
included the preparation of a social history report.”); Blume & Neumann, supra note 162, at 151 (“In effect, when
considering the adequacy of trial counsel's investigation, courts must now look to ABA standards, as well as local
practice, in order to determine whether the Sixth Amendment has been satisfied.”).
307
Wiggins, 539 U.S. at 524.
306

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lawyers, judges, clients, and juries. Navigation of the local culture requires local knowledge.
This local knowledge is encapsulated in local practices and is developed through experience,
making it intuitive and thus hard to clearly articulate. The complexity in clearly articulating
necessary local knowledge makes it a difficult topic for critique and comparison, highlighting the
need for flexibility.
Localism’s flexibility recognizes the reality that criminal cases can progress quite differently
depending on the jurisdiction. These differences may call for varying levels and types of defense
counsel involvement in a case. An example based on my own experience defending individuals
charged with misdemeanors in three very different jurisdictions illustrates this point.308 Consider
a Mr. Jones, an indigent man charged with misdemeanor drug possession of heroin. Mr. Jones
lives with his children in public housing; he has one prior conviction from five years earlier for
misdemeanor drug possession. Imagine that the street stop of Mr. Jones, who was in front of the
grocery store near his house with a group of men when searched, raises legitimate Fourth
Amendment issues.
If Mr. Jones were arrested in Manhattan, he would meet his attorney for the first time at his
arraignment, when he would likely receive a plea bargain offer from the prosecutor or an offer to
plead guilty in exchange for an agreed-upon sentence from the judge.309 Because of the high
volume of misdemeanors in Manhattan’s arraignment courtrooms, Mr. Jones — assuming that he
had only a minimal criminal record — might be told that he could have a sentence of time served
should he plead guilty to the possession misdemeanor. However, his defense counsel would also
know that many misdemeanors are dismissed in New York City under the state’s speedy trial
statute but normally only after a defendant has appeared numerous times on the case.310 Thus,
while Mr. Jones might have a strong claim for suppression of the heroin (and thus dismissal of
the case), he would not get a hearing for many months, during which time the offer to plead
guilty for no additional jail time would likely be re-offered many times. If he could continue to
appear in court, he might win suppression or a speedy trial dismissal.
Four and a half hours away in Syracuse, New York, Mr. Jones would be in quite a different
situation. He might have been offered drug treatment court, where his case would be dismissed
if he completed a drug treatment program. Mr. Jones’ lawyer would be invited, but not required
(and perhaps not encouraged), to attend Mr. Jones’ drug treatment court appearances, where the
judge would get updates about Mr. Jones’ progress or problems in treatment. After a first
problem, such as a positive drug test, Mr. Jones could remain in the program only if he pled
guilty to the possession charge. The court would not impose a sentence at this point, however,
and would agree to vacate his guilty plea upon completion of the program. After the guilty plea,
any suppression advocacy would be off the table. At a later court appearance, defense counsel
might learn that Jones had failed another drug test and that the judge was going to incarcerate
him until there was a bed for him at an in-patient program. Should Mr. Jones later fail to
complete that program, he could expect to be sentenced (remember, he pled guilty earlier) to the
maximum sentence for misdemeanor possession in New York State — one year in jail.
308

My practice experience was as a public defender from 1996–2001 in New York City, and then teaching a
criminal defense clinic from 2005–2009 in Syracuse, New York, and 2009 to the present in Montgomery County,
Maryland. Thus, these examples reflect local practice and culture during those time periods.
309
See Ronald Wright & Marc Miller, The Screening/Bargaining Tradeoff, 55 STAN. L. REV. 29, 32 n.10, 82 (2002)
(“In a charge bargain, the prosecutor agrees to dismiss some charges in return for a plea of guilty to the remaining
charges,” whereas sentence bargains entail a “conversation [that] relates directly to the sentence rather than to the
crime of conviction.”).
310
See N.Y. CRIM. PROC. LAW § 30.30 (McKinney 2011) (noting statutory speedy trial periods).

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Finally, Mr. Jones would have yet another experience in district court in Montgomery
County, Maryland. He would have no lawyer at all at his initial appearance, where the “judicial
officer” would either release him or set bail.311 He would first meet his lawyer at or just before
his trial date, some thirty days later. 312 Counsel would tell Mr. Jones that he would not qualify
for the intensive drug education program that leads to an effective dismissal of the charges
because he already had a drug conviction. He would have two choices that day. First, he could
plead guilty to the charge and hope for one of a variety of potential sentences that would not
involve jail time. Because district court judges will not promise any sentences before the plea,
counsel would have to tell Mr. Jones that the judge could give him any sentence up to the
statutory maximum of four years for misdemeanor possession. Of course counsel would also tell
Jones what sentence he thought was likely. Second, he could try to win suppression in the lower
criminal court. His lawyer would tell him that the suppression hearing would take place that day,
in the middle of a bench trial, when the prosecution attempted to admit the heroin into evidence.
Mr. Jones would also learn that, if he did not get suppression during the trial and was then
convicted of possession, under Maryland’s de novo system for misdemeanors he could appeal his
case to the Circuit Court to get another suppression hearing and a jury trial.313 He might also
receive a plea bargain in that court.
The descriptions of these three different courts show how taking local practice into account
in setting constitutional norms allows for flexibility. But they also illustrate how the chaos of the
particular system may dictate a local culture of passivity instead of zealousness. There are thus
two ways to view these three different descriptions of Mr. Jones’ case. The first view argues that
these three descriptions illustrate that local rules, practice, and culture lead to three quite
different situations, all of which require different approaches to advocacy and some different
skill sets. The need to quickly interview a client and witnesses, and then litigate a suppression
hearing, trial, and possible sentencing in a few short hours is quite different from the need to
intensively counsel a client about the pros and cons of drug treatment court, including the
likelihood of winning the suppression issue that the client would have to forgo to enter drug
court. These are both different from the task of counseling a client under time pressure at an
arraignment about a plea offer, and to explain the workings of a non-intuitive justice system
where cases are on the court calendar for a year or longer, only to end in dismissal for a speedy
trial violation. This first view thus embraces localism in setting effective assistance standards.
This Article advances a second view: when resource deprivation determines culture,
ineffective assistance jurisprudence should not excuse inadequate representation in the name of
localism. For example, lawyers struggling to adequately counsel clients facing plea decisions at a
first appearance should not be excused as a necessary facet of practice in a locality that relies
heavily on plea bargaining and guilty pleas at the first appearance. Similarly, the specter of
lawyers attempting to meet the client for the first time, prepare for, and possibly go to trial in
several cases on the same day cannot be acceptable under a theory of localism that would be
consistent with the purposes of the Sixth Amendment.

311

MD. RULES § 4-213 (West 2004). But See Richmond v. Maryland, No. 24-C-06-009911 (Md. Cir. Ct. Sept. 30,
2010), cert granted sub nom. DeWolfe v. Richmond, 429 Md. 81 (Md. 2011).
312
This fast-track trial scheduling is based on my personal experience supervising clinic students in the District
Court of Maryland for Montgomery County. There is no Maryland statute that requires this particular process.
313
MD. RULES §§ 7-101, 7-102(a) (West 2004) (noting how appeals from lower courts to circuit court “shall be tried
de novo in all . . . criminal actions”).

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This second view is not entirely at odds with the first view. Legitimate differences in local
practice that arise from valid decisions about how to administer a lower court should be taken
into account in ineffective-assistance jurisprudence. For example, a number of states have made
the valid choice to use a de novo system in the lower courts, 314 as described above in the
Maryland example of Mr. Jones’ case. Other states use one system for both misdemeanors and
felonies, so that the right to appeal a conviction takes the traditional route of direct review rather
than a new hearing and trial in the court of higher jurisdiction.315 Evaluation of the
reasonableness of defense counsel’s actions in a case litigated in a de novo system might differ
from actions taken in a traditional appellate system.
While a particular case might unfold in very different ways in different places, there is
clearly much that defense advocacy has in common wherever it is undertaken. Thus, a clear
articulation of the common tasks expected of misdemeanor lawyers — at least at a general level
— would set a baseline consistent with reasonably adequate lawyering expected in all cases. All
of the hypothetical lawyers representing Mr. Jones should interview him, and then investigate the
case, which might include a visit to the scene of the search and seizure, review of applicable
Fourth Amendment law, and inspection of the evidence. Any of the three lawyers would also
counsel Mr. Jones about the viability of the suppression motion as well as any serious collateral
consequences of a drug conviction, which would include the likelihood of both his children and
him losing their public housing. These are just a few of the many basic, common tasks in the
misdemeanor representation of Mr. Jones, regardless of the place of arrest.
Justice Marshall’s insightful Strickland dissent raised a further critical issue: “It is also a fact
that the quality of representation available to ordinary defendants in different parts of the country
varies significantly. Should the standard of performance mandated by the Sixth Amendment vary
by locale?”316 Again, this is particularly troubling when asked in the context of misdemeanor
representation. Can the norms of practice control when they range from outright violation of the
right to counsel (pleas taken or even trial conducted with no lawyer appointed), to “a live body
next to you” representation, to excellent work in particular jurisdictions on minor cases?
Certainly quick pleas with little consultation and little-to-no review of the evidence are common
practice.317
To put the locality issue into stark light, imagine a county defender office strapped for
resources that decides to institute a practice of no investigation in misdemeanor cases so that the
office can devote its entire investigatory budget to felonies. Because one of the three sources for
determining levels of effective-assistance is local norms, one must ask how a court reviewing a
claim in this jurisdiction would factor in this unfortunate practice. This norm of practice arises
not out of a principled determination about what level of service is necessary to ensure just
outcomes, but rather comes from the inevitable abdication of defense responsibility in the face of
insurmountable resource deprivation combined with overwhelming caseloads.318 Such a practice
314

See David Harris, Justice Rationed in the Pursuit of Efficiency: De Novo Trials in the Criminal Courts, 24 CONN.
L. REV. 381, 385 (1992) (finding that “[t]wenty-four state utilize de novo systems”).
315
See, e.g., N.Y. CRIM. PROC. LAW § 460.10 (McKinney 2005) (governing appeals).
316
Strickland v. Washington, 466 U.S. 668, 708 (1984) (Marshall, J., dissenting) (citing Moore v. United States, 432
F.2d 730 (3d Cir. 1970)) (noting required performance level is “customary skill and knowledge which normally
prevails at the time and place”).
317
See sources supra at note 298 (noting such problems in a variety of jurisdictions).
318
A broader critique would be that courts rely on any norms of practice in setting effective assistance standards in
any type of case. In the world of indigent defense, which comprises the vast majority of criminal cases, most
defenders’ practice is often not — and never exclusively — driven by careful determination of what is sufficient and

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would certainly violate professional standards, including the ABA Standard that calls for
thorough investigation.319 How will a court reconcile this conflict between local practice and
national professional standards?320 Clearly, there will always be unequal levels of indigent
representation because some defender systems offer more than the constitutional minimum in
terms of the services they provide. The issue here is whether the constitutional minimum — the
floor of competent performance below which defense counsel cannot perform — should differ
based on where a particular person is charged.
A recent report entitled Minor Crimes, Massive Waste, The Terrible Toll of America’s
Broken Misdemeanor Courts called for caseloads that are judged by the “unique nature of the
jurisdiction and its misdemeanor practice and, under no circumstances, exceed national
standards.”321 Under this approach, local calibration would come at the front-end in determining
what goes into the equation. Thus, the determination of the number of cases an attorney in one
jurisdiction can handle might differ from the number in another jurisdiction with a different
practice. The local calibration should not come at the back-end, in determining if there was
indeed adequate assistance in appellate review of a post-conviction ineffective-assistance claim.
Assistance of counsel should always come out effective, and what one jurisdiction needs to
accomplish that may vary from another.
The current incorporation of localism into ineffective-assistance jurisprudence advances a
race to the bottom, with the troubling phenomenon of courts excusing low practice levels simply
because there are low practice levels in that locale. For misdemeanor representation, already
beset with issues of resource deprivation and other systemic pressures, courts considering postconviction ineffective assistance claims should reject these invalid aspects of localism and
instead should judge attorney competency against uniform standards. There comes a point where
efficiency and inadequate funding push too hard against individual rights. Individuals facing
misdemeanor charges and potential jail time have a Sixth Amendment right to the effective
assistance of counsel, and there is no “resource deprivation” or “triage” exception to this
important constitutional guarantee.
There are a number of structural impediments to the development of a jurisprudence of
ineffective assistance of counsel in misdemeanor cases.322 However, courts should strive to
overcome barriers wherever possible in order to add their institutional voice to the conversation
about misdemeanor representation, and to prompt often-reluctant legislatures to live up the
realities of the misdemeanor-driven criminal justice system that they have created. By rejecting
localism in ineffective assistance of counsel analyses, courts can urge professional organizations
to either adopt uniform misdemeanor-specific standards, or to clarify if current standards apply
what may be unnecessary. While some defender offices offer high-quality services, other jurisdictions lack any
defender office and use assigned counsel plan or “lowest bidder” contracts to deliver indigent defense services. See
GIDEON’S BROKEN PROMISE, supra note 18, at 2 (describing three different types of defender systems: public
defender, assigned counsel, and contract). In all locations, fiscal and personnel constraints drive the norms to some
extent.
319
ABA, STANDARDS FOR CRIMINAL JUSTICE: PROSECUTION AND DEFENSE FUNCTION § 4-4.1 (3d ed. 1993).
320
This example of forgoing all investigation is a stark one. It may be unconstitutional, as Williams and Wiggins
highlight the Sixth Amendment right to an attorney who investigates the case. See Wiggins v. Smith, 539 U.S. 510,
514 (2003); Williams v. Taylor, 529 U.S. 362, 390 (2000). However, both of those cases involved capital sentencing
mitigation investigations, a far cry from forgoing investigation in a misdemeanor. In addition, since the right to an
attorney who undertakes effective investigation is based in part upon local practice, it circles back to the original
question.
321
MINOR CRIMES, MASSIVE WASTE, supra note 12, at 24 (Recommendation One, on excessive caseload).
322
See supra Part III.A.1.a.

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to misdemeanors and explain how they might apply to misdemeanor advocacy. In this way,
courts can act as provocateurs: pushing the other relevant institutions — including legislative
bodies, prosecutors, and defender offices — to fashion workable solutions to the difficult task of
defining and supporting effective misdemeanor representation.
Due to the cost of indigent defense, a strong judicial message about the need for reforming an
unconstitutional system of defense delivery might prompt further efforts to move unnecessary
cases out of the lower criminal courts. Indeed, a number of factors make this a critical time for
the judiciary to add its voice to the crisis in misdemeanor representation, including: legislatures’
current willingness to engage in decriminalization; the nationwide financial crisis that is putting
significant pressure on state, county, and local budgets;323 a growing awareness of the difficulties
that individuals with criminal records, however minor, have in joining or rejoining the
workforce; and the implications of these barriers for public safety.324

C. The Role of Professional Organizations: Promulgating Standards for Misdemeanor
Representation
Professional organizations’ written standards for criminal justice actors play a powerful role
in reform efforts. For example, the ABA Criminal Justice Standards are developed and
promulgated by broadly representative task forces of criminal justice practitioners that include
prosecutors, judges, defense lawyers, academics, the public, and other groups that may have a
special interest in the subject.325 The resulting standards build on the diversity of experience of
these groups and reflect many salutary practices. One commentator noted how “[p]rosecutors
and defense attorneys have found the Standards useful . . . in guiding their own conduct, and in
training and mentoring colleagues.”326 In addition, as explored in section II(B)(2) above, the
Supreme Court has cited ABA Standards in numerous cases analyzing prevailing professional
norms under Strickland’s first prong, and recently cited a variety of other standards as well.327
There are currently no misdemeanor-specific professional standards from a national
organization such as the ABA.328 However, there are a number of public defender offices that
have developed high-level practices in the lower courts,329 providing field development of
salutary, specialized misdemeanor representation that awaits incorporation into existing sets of
323

See Adam Skaggs & Maria da Silva, America’s Judiciary: Courting Disaster, L.A. TIMES (July 8, 2011),
http://articles.latimes.com/2011/jul/08/opinion/la-oe-skaggs-dasilva-courts-20110708; see also DIVERTING AND
RECLASSIFYING MISDEMEANORS, supra note 73.
324
See supra notes 41, 52, 102 and accompanying text.
325
See Martin Marcus, supra note 196 at 3.
326
Id. at 3; see also Drinan, supra note 177 at 457 (“These [ABA Criminal Justice] standards are beneficial to
litigants because they allow plaintiffs' counsel to measure the system's shortcomings against an objective
predetermined index of factors, and because they assist courts and legislative bodies in crafting appropriate
remedies.”); Love, supra note 195, at 7(“The two most respected sources of criminal defense lawyers‘ professional
duty to the client are the ABA Model Rules of Professional Conduct and the ABA Standards for Criminal Justice . . .
. Over the years, the Standards have earned their place as a measure of ‘prevailing professional norms’ for purposes
of the Sixth Amendment through the thoroughness and balance of the process by which they are developed.”).
327
See supra note 209 and accompanying text (describing citation to broad group of sources in Padilla).
328
See supra Part II.B.2. But cf. infra text accompanying notes 339-344 (describing Washington State standards).
329
See infra text accompanying notes 347-349 (describing offices that follow a holistic defense model); see also
Legal Services, COMMUNITY LAW OFFICE, http://www.pdknox.org/writeup/2 (last visited Sept. 1, 2011) (explaining
that Knoxville Public Defender’s office handles cases in Tennessee’s misdemeanor courts).

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professional standards. At a time when misdemeanor representation matters more than ever,330
yet the low quality of such representation is well documented,331 it is critical that professional
organizations act. Organizations that promulgate national standards should either set out
separate misdemeanor standards or should clarify that existing standards apply to both
misdemeanors and felonies. However, if these organizations choose the latter route, they must
provide commentary explaining what is different about misdemeanor representation that would
allow misdemeanor defenders to handle — if national caseload recommendations are adhered to
— between double and triple the number of cases as felony defenders.332
In 1996, the Department of Justice-funded National Advisory Committee on Indigent
Defense Services’ issued a report noting:
[T]he ever changing landscape in the criminal justice field, including increasingly
complex statutory schemes and litigation, have outpaced the standards. Thus, all
such national standards, whether by the ABA, NLADA, or other national criminal
justice entities, need to be revised and updated to meet the modern needs of
institutional defenders, contract defenders and assigned counsel in the nineties
and into the twenty-first century.333
By suggesting that a Justice Department research branch fund and develop defense practice
standards, the Committee noted how national standards that “promote both high quality defense
services and efficiency are crucial to the effective functioning of the criminal justice system as a
whole, and to the adjudicatory function performed by the courts, prosecution, and defense.” The
Committee also pointed out how “[s]uch standards are also a critical tool for defenders
nationwide in their ongoing battles to secure an adequate share of fiscal resources.”334
At the time of its report, the Committee described a criminal justice crisis fueled by the “war
on drugs,” as well as harsh penalties such as “three strikes” and mandatory sentencing laws.335 It
recognized the need to revisit existing standards in order to adjust to current realities of the
criminal justice system. Some fifteen years later, the crisis as well as the underlying causes that
the Committee identified still exist. However, the exponential growth in misdemeanor
prosecutions, combined with the explosion in potential collateral consequences of even minor
criminal convictions and the wide availability of electronic criminal records, has created another
crisis, this one located in the nation’s lower criminal courts.
By allowing for higher caseloads and different levels of experience for misdemeanor defense
counsel,336 many national and local organizations at least implicitly recognize that the type of
assistance that individuals charged with misdemeanors require differs from the type of assistance
for more serious felony or capital cases. While the ABA sets forth separate guidelines for capital
cases, the Criminal Justice Standards draws no such lines; all non-capital cases are lumped

330

See supra Part I.
See, e.g., MINOR CRIMES, MASSIVE WASTE, supra note 12 (finding that misdemeanor courts are depriving
defendants of their right to counsel and are, at the same time, wasting tax payer money); THREE-MINUTE JUSTICE,
supra note 1 (concluding that Florida courts, in an attempt to cope with the large volumes of cases, have failed to
provide due process to individuals charged with misdemeanors).
332
See supra note 78 and accompanying text (describing these national caseload recommendations).
333
NAT’L LEGAL AID & DEFENDER ASS;N, BLUE RIBBON ADVISORY COMMITTEE ON INDIGENT DEFENSE SERVICES 7
(1997), available at http://www.nlada.org/Defender/Defender_Standards/Blue_Ribbon#two.
334
Id.
335
Id.
336
See supra Part I.A.
331

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together.337 The same is true in the standards of other professional organizations, such as the
National Legal Aid and Defender Association’s Performance Guidelines for Criminal Defense
Representation.338
The ABA and other professional organizations that promulgate standards could simply
clarify that their general standards apply to representation in all types of cases, from
misdemeanors carrying the potential for little jail time to felonies carrying the potential for life in
prison. However, another option would be to differentiate, and to specify more particularly what
is expected of misdemeanor representation. Such misdemeanor standards could come, for
example, in the form of requirements of more familiarity with and training about the myriad
collateral consequences of criminal convictions.
The full content of misdemeanor-specific standards is beyond the scope of this Article, which
instead focuses on the need for such standards and the particular competencies of the different
institutions in articulating them. However, the Washington State Bar Association’s Standards
for Indigent Defense Services offer one example of standards that differentiate misdemeanor
representation. The eighteen standards cover topics including “Guidelines for Awarding Defense
Contracts,” “Limitations on Private Practice of Contract Attorneys,” “Caseload Limits and Types
of Cases,” and “Support Services.”339 By far the longest and most detailed is Standard Fourteen,
entitled “Qualification of Attorneys.” It seeks to define the minimum professional qualifications
necessary for an attorney to fulfill the mandate of delivering effective assistance of counsel.
The first part of “Qualification of Attorneys” covers minimum qualifications for all defense
counsel, while the second part sets out “[t]rial attorneys’ qualifications according to severity or
type of case.”340 Misdemeanors are one category under this “severity or type of case” breakdown. The qualification standard for misdemeanors simply refers back to the first part of the
standard, covering minimum qualifications. In other words, the Washington State Bar Standards
are clear that misdemeanors require less experience than other types of representation. However,
the minimum qualifications that apply to misdemeanor representation cover some important
ground. The most basic qualifications reference the need to meet state Supreme Court
requirements for practicing law, to be familiar with statutes, case law and other sources “relevant
to their practice area,” and to complete seven hours of continuing legal education relating to
public defense practice each year.341 The Standards also call for familiarity “with mental health
issues and [the ability] to identify the need to obtain expert services.”342 For anyone with
practice experience in the lower criminal courts, the importance of familiarity with such issues
— which arise with great frequency as individuals with mental health issues cycle in and out of
the criminal justice system — is clear.
Finally, the “Qualification of Attorneys” standards for misdemeanor representation require
familiarity “with the collateral consequences of a conviction, including possible immigration
consequences and the possibility of civil commitment proceedings based on a criminal
conviction.”343 As noted in this Article, misdemeanor representation requires much more than
337

See supra Part II.B.2. (discussing professional standards).
See supra note 227 and accompanying text (noting how NLADA Guidelines do not mention the word
“misdemeanor”).
339
See WASH. STATE BAR ASS’N, STANDARDS FOR INDIGENT DEFENSE SERVICES (adopted Sept. 20, 2007), available
at http://www.nacdl.org/public.nsf/defenseupdates/misdemeanor/$FILE/WSBA_Indigent.pdf.
340
The third and fourth parts deal with appellate representation and interns, respectively. Id. Standard 14.
341
Id. Standard 14.1(A), (B), (E).
342
Id. Standard 14.1(D).
343
Id. Standard 14.1(C).
338

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familiarity with immigration consequences for non-citizen clients. Although the Washington
misdemeanor qualification standards need more development, including in the area of collateral
consequences, they are an important model for specific standards of misdemeanor representation.
They make clear the expectations for attorneys representing clients in the lower courts. In this
regard, they stand in stark contrast to other standards that make no attempt to separate out
misdemeanor representation and rely on general standards, such as one that simply states: “Prior
to handling a criminal matter, counsel should have sufficient experience or training to provide
quality representation.”344
The existence of such particularized standards demonstrates recognition of the need for
separate rules, as well as the motivation to add them to the existing set. Standards relating to a
particular area of criminal practice, such as misdemeanors, offer an important comparative data
point for review of ineffective assistance claims, as well as a benchmark for appropriate defense
representation. Professional standards specific to misdemeanor representation also give courts
something other than local practice — which is often so poor as to drag norms to unconscionable
levels345 — against which to judge a claim of ineffective assistance of counsel.

D. The Role of the Defender Community
When committed and innovative defender offices set high expectations for their attorneys,
the resulting salutary practices can influence other offices, national practice standards, and
ineffective assistance jurisprudence. Defender standards grow out of best defender practices,346
and thus the defender community plays an early and unique role in the development of a body of
sources that might guide misdemeanor representation. Examples of such defender community
leadership include the Neighborhood Defender Service of Harlem and the Bronx Defenders.
Both are community-based offices that follow a holistic model of criminal defense.347 This
approach, which has been influential on a number of levels, treats clients as individuals with a
variety of potential issues in need of services rather than simply as one narrow criminal case.
One goal of the holistic approach is to address underlying causes of involvement in the criminal
justice system in order to avoid further involvement, including consideration of the collateral
consequences of any criminal conviction as an integral part of defender practice.348 Integrating
344

NAT’L LEGAL AID & DEFENDER ASS’N, PERFORMANCE GUIDELINES FOR CRIMINAL DEFENSE REPRESENTATION
guideline 1.2b (2006), available at http://www.nlada.org/Defender/Defender_Standards/Performance_Guidelines.
345
See supra Part III.A.2.
346
See NAT’L LEGAL AID & DEFENDER ASS’N, A PILOT ASSESSMENT OF THE OFFICE OF THE PUBLIC DEFENDER FOR
SANTA CLARA COUNTY, CALIFORNIA (SAN JOSE), at xi app.A (2003) (“[T]here are many innovative policies and
programs that have been established in indigent defense systems across the country that are nationally regarded as
necessary ‘best practices’ to ensure high quality services to those of insufficient means.”).
347
See THE BRONX DEFENDERS, CTR. FOR HOLISTIC DEF., THE 2011 HOLISTIC DEFENSE FOR PUBLIC DEFENDER
OFFICES TECHNICAL ASSISTANCE PROJECT 2-4 (2011) [hereinafter 2011 HOLISTIC DEFENSE], available at
http://www.bronxdefenders.org/sites/default/files/2011%20Technical%20Assistance%20RFP.pdf (explaining Bronx
Defenders’ theory of holistic representation); NEIGHBORHOOD DEFENDER SERVICE OF HARLEM,
http://www.ndsny.org/index.html (last visited July 15, 2011) (noting how through a holistic approach NDS of
Harlem seeks to address underlying issues, minimize future incidents, and provide referral services to problems
arising out of collateral consequences); see also Holistic Representation, KNOX COUNTY PUB. DEFENDERS
COMMUNITY L. OFF., http://www.pdknox.org/writeup/80 (last visited Mar. 31, 2011) (explaining Knox County
Public Defenders’ holistic representation model).
348
See 2011 HOLISTIC DEFENSE, supra note 347, at 2.

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collateral consequences into defender practice has become a model for other offices,349 and it is
also making its way into national standards.350 A more holistic approach truly entered the
national discussion about the role of defenders in the wake of the Supreme Court’s recent
decision in Padilla, which held that defense counsel has a duty to warn clients about the
deportation consequences of a conviction. 351 The influence of this approach is also apparent in
the numerous lower court decisions following Padilla, many of which have extended the duty to
warn to collateral consequences other than deportation.352
Although some offices have written practice standards,353 many lack such clear guidelines.354
Memorializing these practices in written local defender office standards has the benefit of
providing clear guidance and benchmarks against which to evaluate attorney competency. In
addition, these standards would come from service providers with the expertise to understand
and articulate best practices.
Although voluntary adoption of best practices by defender offices benefits clients and
advances defense practice norms, the lack of an enforcement mechanism for such standards can
weaken their effect. One recent report on the state of indigent defense noted how, although
almost all national and local practice standards are voluntary,
[A]n indigent defense program could choose to require that its attorneys adhere to
them. For example, certain of the recommendations contained in NLADA’s
Performance Guidelines for Criminal Defense Representation could be made
mandatory for an agency’s attorneys, and sanctions could be imposed in instances
of non-compliance. However, we are aware of no defense program that has
actually developed a vigorous process to monitor and strictly enforce compliance
with performance standards.355
The report describes how “at least one state has adopted standards that purport to be
mandatory as a condition for receiving funding from the state,” referring to the Indiana
Public Defender Commission’s Standards for Indigent Defense Services in Non-Capital

349

See, e.g., MD OFF. OF THE PUB. DEFENDER, http://www.opd.state.md.us/services.html (last visited July 15, 2011)
(describing office and services provided); see also SYSTEM OVERLOAD, supra note 39, at 29-32 (section entitled
“Doing it Better: Holistic and Community-Based Approaches”).
350
UNIF. COLLATERAL CONSEQUENCES OF CONVICTION ACT, supra note 48, at 12-14; PLEAS OF GUILTY, supra note
68, § 14-3.2(f) (“To the extent possible, defense counsel should determine and advise the defendant, sufficiently in
advance of the entry of any plea, as to the possible collateral consequences that might ensue from entry of the
contemplated plea.”).
351
Padilla v. Kentucky, 130 S. Ct. 1473 (2010); see also Conference Report, Benjamin N. Cardozo School of Law,
Padilla and the Future of the Defense Future (June 20-21, 2011),
http://www.cardozo.yu.edu/MemberContentDisplay.aspx?ccmd=ContentDisplay&ucmd=UserDisplay&userid=1039
6&contentid=20736&folderid=360 (describing event to “bring together people with a variety of experiences in the
criminal justice system to discuss the future of the role of the defense lawyer”).
352
See, e.g., Taylor v. State, 304 Ga. App. 878, 884 (Ct. App. 2010) (extending Padilla to sex offender registration);
Commonwealth v. Abraham, 996 A.2d 1090 (Pa. 2010) (holding that counsel must warn of possible loss of pension
as a consequence to entering plea).
353
See, e.g., COMMITTEE FOR PUBLIC COUNSEL SERVICES, Performance Standards and Complaint Procedures
(2010), available at http://www.publiccounsel.net/private_counsel_manual/chapter_four.html.
354
MINOR CRIMES, MASSIVE WASTE, supra note 12, at 41.
355
JUSTICE DENIED, supra note 73, at 35.

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Cases.356 Of course, as described in Part II.B.2 above, such standards do not specifically
address misdemeanor practice.357
While a full exploration of the myriad ways in which the defender community might
set and enforce standards for misdemeanor practice is beyond the scope of this Article,
the remainder of this section briefly describes two areas in need of immediate attention
for training, policy, and standards: first, the understanding and use of collateral
consequences for interviewing and counseling clients, and negotiating plea bargains with
the State; and second, the alarming rate of waiver of the right to counsel in many lower
courts around the nation.
1. Collateral Consequences as a Focus of Misdemeanor Attorney Training and
Practice
In 2002, the ABA published the Ten Principles of a Public Defense Delivery System in
recognition of “the need for clear and concise guidance on how to design an effective system for
providing public defense services.”358 Principle Number Six calls for a system where “[d]efense
counsel’s ability, training, and experience match the complexity of the case.”359 The ABA
intended this Principle to capture the idea that there are certain classes of cases that require a
certain level of experience and expertise. For example, the commentary for this Principle cites
the “Attorney Eligibility” guideline from the ABA’s Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases.360 Few would argue with the notion that
defense counsel needs experience before handling cases that carry significant potential prison —
or death — sentences, or with the idea that attorneys need particularized training to handle these
cases, such as in the area of forensic evidence or capital mitigation advocacy.
Misdemeanor lawyering also calls for particularized training and ability. In a system of
generally low-stakes criminal sanctions for misdemeanor convictions,361 defense counsel must
have training and expertise in the non-criminal sanctions that often overwhelm any sentence that
the trial judge imposes.362 As the Director of Bronx Defenders noted, “[W]hen a plea to
disorderly conduct makes a client presumptively ineligible for New York City public housing, as
it does here, or where two convictions for turnstile jumping makes a lawful, permanent resident
non-citizen deportable, then something has got to change and indigent defense needs to look
different.”363 This observation captures the concept of focusing defender resources on issues that
matter most to the client. In the case of misdemeanors with low-level sanctions, severe collateral
consequences of any conviction will surely play a large role in a defendant’s cost-benefit
analysis of entering a guilty plea or going to trial.364
356

Id. at 34 & n.76 (citing IND. PUB. DEFENDER COMM’N, STANDARDS FOR INDIGENT DEFENSE SERVICES IN
NON-CAPITAL CASES (1995), available at http://www.in.gov/judiciary/pdc/docs/standards/indigentdefense-non-cap.pdf.).
357
The Indiana Standards set minimum qualifications for attorney handling felonies, but only mention minimum
qualifications for misdemeanor cases in the juvenile delinquency context. Id. at 9.
358
See TEN PRINCIPLES OF A PUBLIC DEFENSE DELIVERY SYSTEM, supra, note 291, at iv.
359
Id. at 1.
360
Id. at 5 & n.21.
361
But see supra notes 56- 62(describing jurisdictions such as Maryland, with 10-year maximum sentences for some
misdemeanors and California, where certain crimes “wobble” between misdemeanor and felony).
362
See supra Part I.B (discussing the collateral consequences of misdemeanor convictions).
363
Spangenberg Study, supra note 130, at 145.
364
See supra notes 138 and accompanying text (discussing such analyses by defendants).

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Training for attorneys just entering defense work (and thus most likely to handle
misdemeanor cases), or for attorneys who practice exclusively in the lower criminal courts,
should focus on the most pervasive and common collateral consequences of criminal
convictions.365 To be sure, there is some positive movement in this direction. However, it is still
quite limited. For example, Wisconsin’s Office of the State Public Defender offers a variety of
continuing legal education trainings, one of which is entitled Handling a Misdemeanor Case
from A to Z.366 In 2009, the A to Z agenda did not list any topic relating to collateral
consequences of a misdemeanor conviction.367 The 2010 training agenda had one hour on
“Immigration Consequences of Conviction,”368 presumably included as a result of the Supreme
Court’s Padilla decision.369 Although it is certainly an improvement that at least one collateral
consequence has found its way into these new attorney trainings,370 a one- or two-day training
cannot cover everything; misdemeanor attorneys should be aware of more than immigration
consequences for non-citizen clients. In addition to immigration, misdemeanor attorneys should
learn about the jurisdiction’s statutory bars to employment for individuals with a criminal record,
as well as any other serious collateral consequence that would apply if the client were
convicted.371
Once armed with important information about collateral consequences that matter to the
client, misdemeanor attorneys have the greatest potential for creative use of such information in
plea-bargaining with prosecutors to avoid unintended consequences in particular cases.372 There
are a number of reasons for this potential, including the fact that in low-level cases, prosecutors
may be more flexible in working out bargains that avoid serious collateral consequences, and
that defenders often have a number of alternative misdemeanors, noncriminal offenses, or
diversion programs to choose from in proposing solutions. As Justice Stevens noted in Padilla:
Counsel who possess the most rudimentary understanding of the deportation
consequences of a particular criminal offense may be able to plea bargain
creatively with the prosecutor in order to craft a conviction and sentence that
reduce the likelihood of deportation, as by avoiding a conviction for an offense
that automatically triggers the removal consequence. At the same time, the threat
of deportation may provide the defendant with a powerful incentive to plead

365

McGregor Smyth, Holistic Is Not a Bad Word: A Criminal Defense Attorney’s Guide to Using Invisible
Punishments as an Advocacy Strategy, 36 U. TOL. L. REV. 479, 498 (2005).
366
See Year 2010, CLE Approved Programs, WIS. ST. PUB. DEFENDER’S OFFICE (Jan. 13, 2011),
http://training.wisspd.org/file.php/1/CLE/Complete_CLE_List_1998-2010_.pdf.
367
See HANDLING A MISDEMEANOR CASE FROM A TO Z, WIS. STATE PUBLIC DEFENDER’S OFFICE,
http://wisspd.org/htm/ATPracGuides/Training/ProgMaterials/AZ09/MilwAgenda.pdf (last visited Nov. 10, 2011).
368
HANDLING A MISDEMEANOR CASE FROM A TO Z, WIS. ST. PUB. DEFENDER’S OFFICE,
http://wisspd.org/htm/ATPracGuides/Training/ProgMaterials/AZ10/MadAgenda.pdf (last visited Nov. 10, 2011).
369
Padilla v. Kentucky, 130 S. Ct. 1473, 1484 (2010).
370
Immigration consequences are also now on the general CLE training list in Wisconsin. See Immigration and
Criminal Defense in the Post-Padilla Era, WIS. ST. PUB. DEFENDER’S OFFICE (FEB. 25, 2011).
http://wispdtraining.blogspot.com/2011/02/on-demand-immigration-and-criminal.html (describing course focusing
on defense counsel’s Sixth Amendment duty to counsel non-citizen clients about the immigration consequences of a
criminal conviction).
371
See supra Part I.B (discussing serious collateral consequences of misdemeanor convictions).
372
For a more fully-developed exploration of defenders’ use of collateral consequences in negotiations, see Roberts,
supra note 138.

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guilty to an offense that does not mandate that penalty in exchange for a dismissal
of a charge that does.373
The Padilla decision thus highlighted the importance of incorporating collateral consequences
into plea negotiations. However, standards for and training about negotiation are not common in
defender offices; the skill of negotiation is perhaps one of the most-neglected skills, beginning in
law school and continuing into practice.374
Misdemeanor attorneys should also be trained to pursue any sealing or expungement
mechanisms available for the client’s criminal records.375 In some jurisdictions, there may be a
certificate of relief from civil disabilities or other document to ameliorate such things as
employer hesitancy in hiring individuals with criminal records.376 Such relief mechanisms are
particularly important in an era where landlords, employers, and the general public have easy
electronic access to an individual’s criminal records, and in jurisdictions where dismissals
remain on the record until expunged.377 Although felony convictions can rarely be sealed, many
jurisdictions allow for sealing of misdemeanor records, and misdemeanor defenders should
integrate this critical step—as well as helping the client apply for certificates of relief—into
client representation.
The defender community has an important role to play in training new attorneys and
attorneys focused on lower court practice. Trainings aimed at collateral consequences,
expungement, sealing, or other relief mechanisms, are a critical facet of misdemeanor
representation, and deserving of more attention than they currently receive.
2. Lowering High Rates of Waiver of the Right to Counsel in the Lower Courts
Misdemeanor-focused trainings will only benefit clients who actually receive the assistance
of counsel. Yet in the lower courts across the country, there are high rates of waiver of the right
to counsel, often under troubling circumstances. For example, under Colorado state law, indigent
defendants facing misdemeanor charges must consult with a prosecutor before applying for
appointed counsel. It is only after the prosecutor informs the court of any plea agreement
373

Padilla, 130 S. Ct. at 1486 (“By bringing deportation consequences into th[e plea bargaining] process, the
defense and prosecution may well be able to reach agreements that better satisfy the interests of both parties.”); see
also Smyth, supra note 365 at 493; Robert M.A. Johnson, Message from the President, PROSECUTOR, May–June
2001, at 5 (former President of the National District Attorneys Association writing that prosecutors “must consider
[collateral consequences] if we are to see that justice is done”).
374
This observation is based on my own practice experience, as well as my experience researching law school
curricular offerings as I developed a course on plea bargaining that includes readings about and a simulation
involving negotiation. Many schools offer a general Lawyer Bargaining or Negotiation type of class, but these are
generally limited-enrollment seminars taken by small numbers of students. See, e.g., Course Information Spring
2012, SANDRA DAY O’CONNOR C. L.,
http://apps.law.asu.edu/Apps/Registrar/CourseInfo/AllCourses.aspx?semester=20121 (last visited Oct. 20, 2011)
(showing that there is one Negotiation course offered).
375
See, e.g., WIS. STAT. § 938.355 (2011) (juvenile expungement statute); WIS. STAT. § 973.015 (2011)
(expungement of record in limited instances for adults).
376
See, e.g., N.Y. CORRECT. LAW §§ 701-703 (2011); cf. Joy Radice, Administering Justice: Removing Barriers to
Reentry, 83 U. COLO. L. REV. (forthcoming 2012) (manuscript at 28-30, 41), available at
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1864917 (describing how under New York law, employers must
use presumption of rehabilitation when considering hiring individual presenting certificate of rehabilitation, but how
“[m]any unanswered questions exist about how employers actually use certificates in their decision-making. If the
court decisions described above are any indication, the consideration may be minimal at best.”)
377
See supra notes 43-44 and accompanying text (describing Maryland’s expungement statute and electronic access
to records).

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between the state and the un-counseled defendant that the court must advise the defendant of his
right to court-appointed counsel (if qualified).378 This troubling incentive structure is clearly
constructed to encourage waiver of the right to counsel, as the first mention of counsel comes
when an agreed-upon bargain is already on the table. A defendant who has already accepted
such a bargain and stands before the judge ready to enter the plea is unlikely to suddenly assert
his newfound right to counsel.379
Waiver of the right to counsel is permissible only if the judge ensures that the defendant is
knowingly, voluntarily, and intelligently relinquishing this constitutional right. 380 Yet there are
high waiver rates and waiver practices in lower courts across the country that are, like
Colorado’s, questionable.381 For example, a recent study of Florida’s lower courts revealed that
sixty-six percent of defendants came to their arraignment without counsel. Of those defendants,
half waived the right to counsel.382 Defendants who waived their right to counsel were most
likely to enter a guilty plea at arraignment, with more than eighty percent pleading either guilty
or no contest, which has the same legal effect as a guilty plea,383 at that early appearance.384
A number of studies have highlighted the doubtful validity of the waiver process in a variety
of jurisdictions.385 In one study:
In a number of jurisdictions, site teams observed judges ignoring the rules
regarding waiver. Time after time, courts made clear to defendants that they must
waive counsel to proceed. There were no inquiries into the education or
sophistication of the defendants and very few efforts to warn defendants regarding
the dangers of self-representation or the kind of assistance counsel could provide.
Often the waiver was incorporated into the first part of the proceeding and was
presented as a rhetorical, compound question directed at whether the defendant
wanted to dispose of the case quickly. The judge asked the defendant something
378

COLO. REV. STAT. § 16-7-301(4) (2006).
See RACE TO THE BOTTOM, supra note 2, at 15 (describing a similar incentive structure in Michigan’s lower
courts); see also Ronald E. Wright & Wayne A. Logan, The Political Economy of Application Fees for Indigent
Criminal Defense, 47 WM. & MARY L. REV. 2045, 2087 (2006) (“Statewide court data from Minnesota and North
Carolina fail to reveal any impact on waiver rates when those states enacted application fee statutes. This statewide
pattern might show that defendants place a higher value on defense counsel than the amount of the application fee,
or it could reflect the efforts of trial judges and defense lawyers to spare the defendants from such choices. We are
more inclined to believe the latter, because it fits with the often-observed power of trial actors to dampen the effects
of criminal justice policy changes imposed from the top, especially in the short-run.”).
380
See Iowa v. Tovar, 541 U.S. 77, 81 (2004) (“The constitutional requirement is satisfied when the trial court
informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of
the range of allowable punishments attendant upon the entry of a guilty plea.”).
381
See Wright & Logan, supra note 379, at 2080 (comparing felony and misdemeanor waiver rates in North
Carolina and Minnesota). There is a pending constitutional challenge to the Colorado statute. See Complaint, at 1,
Colo. Crim. Def. Bar v. Ritter, No. 10-cv-2930-JLK (D. Colo. Dec. 2, 2010) ("Plaintiffs bring this action pursuant to
28 U.S.C. § 2201(a) to obtain a declaration that Colorado violates the Sixth Amendment to the United States
Constitution by deferring the appointment of counsel for certain indigent criminal defendants until after such
defendants engage in discussions with prosecuting attorneys regarding potential plea offers.").
382
THREE-MINUTE JUSTICE, supra note 1, at 15.
383
See supra note 135 and accompanying text (explaining “no contest” pleas).
384
THREE-MINUTE JUSTICE, supra note 1, at 23 tbl.9; see also Wright & Logan, supra note 379, at 2080-82 (stating
that, although “precious little data exist on waivers of counsel in misdemeanor cases,” approximately 40% of
misdemeanor defendants in North Carolina waived counsel).
385
See, e.g., GIDEON’S BROKEN PROMISE, supra note 18,at 39; MINOR CRIMES, MASSIVE WASTE, supra note 12, at
15-16.
379

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like, “You are waiving counsel and wish to proceed now, right?” and the
defendant responded, “Yes.”386
Even when valid, waiver of the constitutional right to counsel is troubling because it means
that a defendant is representing himself in a proceeding that may result in a criminal record, a jail
sentence, or some other significant outcome. Despite a defendant’s satisfaction with the
outcome of his case — for example a plea bargain to a seemingly minor misdemeanor that
allows him to avoid incarceration — that defendant will likely be unaware of the myriad
collateral consequences of that conviction.387 This may include ignorance of the fact that the
misdemeanor can be used to enhance punishment in a later conviction. As the former Chief
Justice of the Florida Supreme Court noted in one example, “[S]pur-of-the-moment decisions to
plead guilty to driving on a suspended license or under the influence can be used to charge a
subsequent suspended license or DUI offense as a felony in Florida."388
In addition to ignorance about potential enhanced punishment based on a misdemeanor
conviction, waiver means that there is no counsel to warn a defendant about serious collateral
consequences of his guilty plea and conviction. This raises interesting legal issues in the wake of
Padilla v. Kentucky.389 There is now a constitutional duty for defense counsel to warn clients
about the deportation consequences of a criminal conviction, a duty that some lower courts have
extended beyond deportation to include other serious consequences such as sex offender
registration.390 The combination of high waiver rates in misdemeanor cases, high rates of guilty
pleas after waiver in some jurisdictions, and the many serious collateral consequences that flow
from misdemeanor convictions raises the question of whether a court must ensure that a
defendant realizes he is giving up his right to counsel about such collateral consequences through
his waiver. It also raises the question of whether a court's inquiry about the matter is sufficient,
given the inability of the court to question a defendant about things such as citizenship to
determine what collateral consequences might apply. Finally, lowering high rates of waiver in
the lower courts could lead to significant long-term savings, as effective defense advocacy can
result in fewer unnecessary convictions and, therefore, fewer individuals saddled with a criminal
record that serves as a bar to most employment.391 These issues illustrate the need for guidance
and an updated view about standards surrounding waiver in misdemeanor cases.
The defender community's voice on the issue of high rates of waiver in the lower courts is
critical. In most jurisdictions, high workloads mean that public defenders struggle to handle
existing clients’ cases.392 A recommendation that defender offices ameliorate high waiver rates
by providing counsel at the first appearance and representing more clients in lower court cases
sounds unrealistic. However, defenders are uniquely situated to witness inappropriate waivers
and to advocate on behalf of the individuals subject to such conditions. Defender offices are also
situated to take positions on standards for waiver in misdemeanor cases. Although articulating
salutary practice standards may not lead to immediate change, there is certainly precedent for the
386

MINOR CRIMES, MASSIVE WASTE, supra note 12, at 15.
See supra Part I (setting out various collateral consequences).
388
THREE-MINUTE JUSTICE, supra note 1, at 7; see also Nichols v. United States, 511 U.S. 738, 738-39 (1994) (valid
uncounseled misdemeanor can be used to enhance punishment in subsequent case). But see State v. Kelly, 999 So.
2d 1029, 1052 (Fla. 2008) ("[T]he State may not use an uncounseled conviction to increase a defendant's loss of
liberty in the absence of a valid waiver of counsel.").
389
Padilla v. Kentucky, 130 S. Ct. 1473 (2010).
390
See sources supra note 188.
391
See supra note 95- 97(discussing employment bars based on criminal history).
392
See supra notes 73- 77and accompanying text (describing high caseloads in many jurisdictions).
387

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defender community advancing norms of effective assistance. The decision in Padilla came
after the development of a holistic defender movement that took collateral consequences into
account in defense advocacy393 and the articulation of professional standards encompassing a
duty to counsel clients about deportation.394 The Court cited these developments in setting forth
the constitutional standard.395
The defender community is the front line in defining standards for effective misdemeanor
assistance. By training lawyers to incorporate collateral consequences into interviewing,
counseling, negotiating, and sentencing advocacy, defender offices do more than provide a
critical piece of assistance to clients facing misdemeanor charges. These offices also influence
others in the defender community, as well as professional organizations that write defense
practice standards and courts that decide ineffective-assistance claims. This same influence
could be felt in the area of waiver of the right to counsel if defender offices received the
resources needed to cover more of those cases.
Conclusion
“Most people who go to court in the United States go to misdemeanor courts. The volume of
misdemeanor cases is staggering.”396 Yet the view expressed in one recent report is unfortunately
representative of the quality of representation in many of the nation’s lower courts: “the
emphasis on celerity of case processing has led many of the criminal justice stake holders . . .
interviewed in one jurisdiction . . . to colloquially refer to the district [misdemeanor] court
arraignment dockets as ‘McJustice Day.’”397 Misdemeanor defenders struggle with high
workloads and few resources. Indeed, some defenders — and even entire offices — have found
it necessary to litigate these resources issues.398
Despite some recent recognition of the troubling quality of representation and coercive
circumstances in the lower criminal courts, the meaning of effective misdemeanor representation
remains largely undefined. There is no developed Sixth Amendment jurisprudence of
misdemeanor ineffective assistance of counsel to regulate attorney behavior; nor are there any
professional standards for criminal defense practice that address the particular challenges of
misdemeanor practice. The lack of standards and inadequate representation is a serious problem
because misdemeanors matter. Even minor criminal convictions can lead to major collateral
consequences, including deportation, loss of public housing and benefits, sex offender
registration and community notification, and bars to employment. Quality representation in
misdemeanor cases can help individuals avoid unnecessary collateral consequences, as well as
unnecessarily long jail sentences and wrongful convictions.
393

See supra notes 322, 380 and accompanying text.
See Padilla v. Kentucky, 130 S. Ct. 1473, 1482 (2010) (citing numerous ABA Standards and other guidelines)
(“The weight of prevailing professional norms supports the view that counsel must advise her client regarding the
risk of deportation.”).
395
Id. at 1482-83.
396
MINOR CRIMES, MASSIVE WASTE, supra note 12, at 11.
397
RACE TO THE BOTTOM, supra note 2, at 15.
398
See, e.g., Rivera v. Rowland, No. CV 950545629S, 1996 WL 636475 (Conn. Super. Ct. Oct. 23, 1996) (declining
to grant motion to dismiss in class action suit on behalf of indigent defendants alleging that inadequate
representation due to excessive caseloads and insufficient resources); State v. Bowens, 39 So. 3d 479 (Fla. Dist. Ct.
App. 2010) (certifying the public defender office’s claim of conflict-of-interest arising from excessive caseloads to
the Florida Supreme Court); Louisiana v. Peart, 621 So. 2d 780 (La. 1993) (finding that indigent defendant were not
provided with effective assistance of counsel due to the large caseloads and lack of resources).
394

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There are social costs to inadequate misdemeanor counsel, including the effects that
unnecessary misdemeanor convictions can have on employment, housing, and other issues of
daily living that are critical to the quality of life for individuals, families, and entire communities.
Legislatures that underfund indigent defense should consider the overall costs that inadequate
presentation has on society. Currently, there is an opportune climate for legislatures to take a
broad view in advancing reform in the lower criminal courts and misdemeanor defense. The
fiscal crisis, as well as a growing public recognition that minor convictions can hinder productive
participation in society, has led to several important decriminalization actions in various
jurisdictions. By moving low-level misdemeanors out of the criminal justice system, while
refraining from funding cuts for defenders, legislatures could fulfill the constitutional mandate
for effective assistance of counsel through smarter spending.
There should be no dispute that there is a crisis of representation in the nation’s lower courts,
driven by high volume and low resource levels.399 This crisis must be taken seriously, as it leads
to real harm in individual cases and threatens the very legitimacy of the criminal justice system.
Development of misdemeanor representation standards alone will not reform a deeply troubled
criminal justice system. Yet there is little hope of cultural or constitutional change in the lower
courts, where most individuals charged with crimes experience the system, without first defining
rights and responsibilities in the misdemeanor context. Standards for misdemeanor practice,
articulated by defenders, professional organizations, and ineffective-assistance jurisprudence,
would provide a crucial baseline against which to judge the current crisis in the lower courts. The
existence of standards would serve to highlight current inadequacies, pushing legislatures already
concerned with fiscal realities to give serious consideration to decriminalization, better defense
funding as a long-term savings strategy, and other potential solutions to the indigent defense
crisis. Courts, professional organizations that write standards for criminal defense practice, and
the defender community are best situated to define effective misdemeanor advocacy. Each of
these institutions has particular competencies and specific roles to play in shaping misdemeanor
standards.

399

See, e.g., MINOR CRIMES, MASSIVE WASTE, supra note 12, at 14 (“the operation of misdemeanor courts in this
country is grossly inadequate and frequently unjust”); GIDEON’S BROKEN PROMISE, supra note 18, at 29 (noting how
there are “deep-rooted problems in the delivery of indigent defense services, establishing a clear and pressing need
for reform.”).

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