There are many courts in the United States, particularly misdemeanor courts, in which accused persons appear and often plead guilty without ever receiving the advice of counsel, even when they are eligible for a public defender. In various states, between twenty-five and sixty-eight percent of the defendants in misdemeanor cases do not have lawyers. In many courts in South Carolina, there is no public defender ever available. The American Civil Liberties Union (“ACLU”) has filed a class action lawsuit against two South Carolina cities, alleging that they are unconstitutionally denying counsel to eligible accused persons.
There is no question that the right to counsel attaches at the first appearance before a judge or magistrate. Having counsel to assist the accused persons when they are negotiating a guilty plea or pleading guilty and being sentenced or having a trial is a clearly established right as well.
Robert C. Boruchowitz,
Judges Need to Exercise Their Responsibility to Require that Eligible Defendants Have Lawyers, 46 Hofstra L. Rev. 35