Policy changes reduce public counsel

A new policy in North Carolina keeps some defendants out of jail at the expense of their right to public counsel.

Under the Appropriations Act of 2013, a number of Class 1 and 2 misdemeanors were reclassified into the less serious Class 3—a change that is expected to reduce state expenses. The bill also states that unless more than three prior convictions have been made, a defendant of a Class 3 misdemeanor can only be charged with a fine for misdemeanors committed on or after Dec. 1, 2013. Response from the legal community has noted that increased leniency in punishments means defendants with financial hardship can no longer receive legal counsel appointed by the state when faced with a Class 3 misdemeanor charge.

“The constitution mandates that the state provide legal counsel to defendants who may potentially receive prison sentence who cannot otherwise afford it,” said James Coleman, John S. Bradway professor of law and co-director of Wrongful Convictions Clinic. “Now that these defendants cannot go to jail, they also lose this constitutional right.”

Before the reclassification, Class 3 misdemeanors could result in a short-term prison sentence—a suspended sentence—that would be exercised if the defendant failed to meet the stated conditions of fines and community service, said John Rubin, Albert Coates Professor of public law and government at University of North Carolina at Chapel Hill.

Since these defendants could simply avoid going to jail by complying with the conditions of the suspended sentence, active imprisonment rarely took place for Class 3 misdemeanors. The reclassification has thus not resulted in significant differences in punishments, he added.

According to the bill, one of the goals for introducing the reclassification is to save $2 million from North Carolina’s government budget as it reduces the amount of legal counsel the state provides.

Removing access to public counsel for the affected crimes may lead to a higher number of defendants pleading guilty to charges that they might not have been guilty of or could have been reduced or dismissed, Coleman said.

Lawyers can often reach a plea agreement for the defendants and help avoid conviction, he said. Moreover, lawyers can negotiate with prosecutors who can sometimes dismiss the charge.

“What people often don’t see are the invisible consequences,” Atkinson said. “When people have a criminal record, they are kicked into the alternative universe of second class citizenship, in which it just becomes much harder to live a decent life.”

Because a large number of defendants are impoverished and cannot afford legal counsel, the reclassification will be more harmful to citizens in poverty, particularly black residents, Atkinson added.

A number of other initiatives have been made in North Carolina that may hurt the poor, said Carol Spruill, senior lecturing fellow at the School of Law.

“[North Carolina] is one of the states that refused to expand Medicaid as part of the Affordable Care Act plan that meant federal funds were lost for 500,000 to 600,000 North Carolinians to be insured and have access to health care,” Spruill wrote in an email Wednesday.

North Carolina could improve the situation for citizens in poverty by decriminalizing misdemeanors in general, Atkinson said.

Currently, one in six citizens in North Carolina over the age of 16 has a criminal record, Atkinson said. North Ca;srolina is one of only two states in the U.S that tries 16- and 17-year olds as adults.

“We must shrink the criminal system,” he said. “We have too many crimes and too many people labeled criminals and that really shouldn’t be the case.”