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A Times Editorial
© St. Petersburg Times, published June 4, 2002
From watching television cop shows, most people know that if you're arrested, you have a right to an attorney and an attorney will be appointed if you cannot afford one. What many people don't know is that an asterisk has been attached to this right by the U.S. Supreme Court. States are not required by the Constitution to provide an attorney unless the accused is in danger of actual imprisonment.
In other words, if the potential punishment is a fine, or if the judge agrees not to impose a jail sentence, the defendant does not have to be provided with an attorney at state expense. Some states go beyond what the court requires and provide a lawyer regardless of the potential punishment. Others, such as Alabama, offer only what the U.S. Supreme Court has said they must.
But in a case decided in May, the court told Alabama and other states they have to provide attorneys in a broader set of circumstances. In a 5-4 ruling, the court said the appointment of counsel is necessary when an indigent defendant has been given a suspended sentence -- even if there is little likelihood any jail time will be served. The decision brings additional fairness to prosecutions and reinforces the principle that the burden is on the state to prove guilt.
The case arose after LeReed Shelton was given a 30-day suspended sentence and two years probation for a fight after a traffic accident. Shelton was convicted after representing himself at trial. Though indigent, he had not been offered counsel by the state.
In its ruling, the U.S. Supreme Court agreed with the Alabama Supreme Court that Shelton's sentence should be vacated. The high court said that because Shelton would go to jail if he violated the conditions of his suspended sentence or probation, his Sixth Amendment rights were violated when he was not given benefit of counsel at trial.
In an adversarial system, each side is to be given the opportunity to present evidence and argue its version of events to the court. The truth is supposed to emerge as a consequence of a fair fight. But without a lawyer, Shelton was at a significant disadvantage -- one the Constitution recognizes and protects against.
Justice Ruth Bader Ginsburg spoke for the court's majority: "Deprived of counsel when tried, convicted and sentenced, and unable to challenge the original judgment at a subsequent probation revocation hearing, a defendant in Shelton's circumstances faces incarceration on a conviction that has never been subjected to the crucible of meaningful adversarial testing."
The dissenters, led by Justice Antonin Scalia, complained that the court was imposing a serious new burden on states and taking away a tool they use to keep low-level criminals in check. But Ginsburg noted that most states already provide attorneys to defendants when there is a possibility of receiving a suspended sentence. She forcefully stood against the idea that limited resources can justify a reduction in a constitutional protection.
Ginsburg had it right. It is disappointing that a decision that should have been clear-cut had only five justices on its side.