Gideon Alert: Ignoring the 6th Amendment in Broward County, Florida Municipal Courts

BY David Carroll on Friday, January 14, 2011 at 8:00 AM

It is an all too common occurrence for misdemeanor courts in the United States to pressure people charged with misdemeanors into waiving their right to counsel without adequately informing them of the consequences of doing so.  Courts defend such practices as an attempt to expedite the processing of cases and save money, but the Sixth Amendment does not allow this type of shortcut.  And, the consequences for unrepresented people can be severe, such as loss of public housing, deportation, inability to serve in the armed forces, ineligibility for student loans, and significant financial penalties.

The latest example comes from the municipal courts in Broward County, Florida, where Public Defender Howard Finkelstein has put the judges on notice that  they are “turning a blind eye” to the injustice of no counsel municipal courts in a January 6, 2011 letter to the Chief Judge of the circuit, as reported in the Miami Herald. “The judicial system is failing to provide counsel for indigent persons arrested for violating municipal ordinances.  . . .  [E]ach municipality is responsible for the appointment of defense counsel to indigent defendants.  The municipalities are systemically ignoring this obligation and the courts have failed to act.  Both entities are responsible for the denial of due process and the prolonged incarceration of persons accused of municipal ordinance violations.”

Municipal ordinances are laws that are created by town, city, or county officials – as contrasted with misdemeanors and felonies which are laws created by a state legislature.  These tend to be extremely minor non-violent offenses, such as panhandling or obstructing a sidewalk for example, but some municipalities have seen fit to impose jail time as a possible penalty for violating these ordinances.  Municipalities also decide whether an officer will arrest a person for an alleged violation or whether the officer will simply issue a notice to appear much as one would receive for a speeding ticket.  When a municipality has allowed someone to be arrested for or face jail time for a municipal ordinance violation, then the Sixth Amendment requires that an attorney be appointed to represent that person if they are indigent.  This is where the difficulties began in the municipal courts of Broward County (and similarly where constitutional violations are occurring in municipal courts throughout the country).

In 2006, Florida amended its laws to require that each municipality pay for the cost of appointing an attorney to represent an indigent person charged with violating its ordinances – where that violation was not committed in connection with violation of state law and where the person faced jail time for the violation.  In other words, if cities want to jail people for violation of city ordinances, then those cities must pay the cost of carrying out the Sixth Amendment right to counsel of indigent people charged with violating those ordinances.  Mr. Finkelstein went on record about the plight of the poor in Broward County municipal courts, and also about the high cost to taxpayers of jailing people for violating these ordinances, immediately.  In a March 22, 2007 letter to the Fort Lauderdale city manager, Mr. Finkelstein declined to enter into a contract with the city to defend municipal ordinance violations.  He explained: “The recent report on jail overcrowding submitted by the Sheriff’s Office’s jail consultant indicated that there are many individuals in jail on minor offenses with deminimus bonds.  I also believe that many people are arrested under the guise of an ordinance violation simply for being homeless.  It makes much more sense, both from a humanitarian standpoint and from an economic standpoint, for local governments to provide homeless assistance rather than using the county jail as a solution to get homeless people off the streets.  Although it is painful to see these people in magistrate court and not assist them, it is my strong belief that my office’s participation in their prosecution only legitimizes that prosecution.  …  If the county or municipalities continue to prosecute ordinance violations, then that jurisdiction will be responsible to retain and pay for legal counsel for any indigent defendant.”

Municipal courts in Broward County, however, have apparently disregarded their constitutional and statutory duty to provide people facing jail time in municipal courts with an attorney.  As retold in the recent letter to the Chief Judge, Finkelstein’s staff contacted the Hollywood City Attorney about a person who had been sitting in the county jail for nine days, unable to make bond and without an attorney being appointed.  At the rate of $133/day to house someone in jail, the taxpayers had already paid $1,197 to jail this person who had not yet even been found guilty of a municipal ordinance violation.  The City Attorney did not even know the name of the city’s public defender and “seemed unconcerned” that the person was languishing in jail.  Worse yet, this same person had previously been jailed for 39 days on an open container charge, again without counsel ever having been appointed, costing taxpayers over $4,000.  As confirmed by the Broward County Sheriff to the Miami Herald, the municipalities are not paying the county for incarcerating people charged with municipal ordinance violations.  So the cities are not providing constitutionally required counsel and they are not paying for the cost of jailing people.

The Broward County situation is a perfect example of one of the most widespread failures of our justice system and underscores the recent call by prominent conservatives to show leadership in reevaluating how we deal with such issues.  “The criminal justice system is broken, and conservatives must lead the way in fixing it,” wrote former Speaker of the House Newt Gingrich in a January 7, 2011 Washington Post Op-Ed on behalf of renowned conservatives making up the Right on Crime Campaign.  Given the economic landscape of most states, Gingrich argues that there is an urgent need to address the “astronomical growth” in the jail and prison population, with its “huge costs in dollars and lost human potential.”  Knowing that “there are more humane, effective alternatives,” the Right on Crime Campaign demands that “it is time to fundamentally rethink how we treat and rehabilitate our prisoners.”

Both the left and the right, conservatives and liberals, should seize this opportunity to form partnerships and address the long-standing, chronic deficiencies in the delivery of the right to counsel.  Prudent use of taxpayer dollars requires that state policymakers reduce the need for public defense attorneys by removing non-violent, low level felonies and misdemeanors, and most certainly municipal ordinance violations, from the formal justice system through diversion, mediation, and/or reclassification of crimes to non-jailable infractions where it is safe, reasonable and prudent to do so.

As far back as Argersinger v. Hamlin, the United States Supreme Court suggested much the same: “One partial solution to the problem of minor offenses may well be to remove them from the court system. The American Bar Association Special Committee on Crime Prevention and Control recently recommended, inter alia, that: ‘Regulation of various types of conduct which harm no one other than those involved (e.g., public drunkenness, narcotics addiction, vagrancy, and deviant sexual behavior) should be taken out of the courts. The handling of these matters should be transferred to nonjudicial entities, such as detoxification centers, narcotics treatment centers and social service agencies. The handling of other nonserious offenses, such as housing code and traffic violations, should be transferred to specialized administrative bodies.’”

As Mr. Finkelstein succinctly concludes, “If our cities wish to use the system, they need to pay.  Otherwise, they need to stop arresting poor homeless people.”