Everyone knows that you have a right to an attorney if you are charged with a crime. If you can’t afford one, an attorney will be appointed to you. We hear it on television all the time, as police officers read Miranda rights to suspects. The Constitution guarantees not only the right to counsel, but it also guarantees the right to effective assistance of counsel. But, do we really always have a right to counsel when we are charged with a crime? Do South Carolina courts provide an attorney to every person who is charged with a crime in our state?

When Does the Right to Counsel Apply?

The U.S. Supreme Court has never interpreted the constitutional right to counsel to mean that every person charged with any crime is entitled to an attorney. Prior to the Gideon v. Wainwright decision in 1963, many states did not provide attorneys to defendants. In the Gideon case, the defendant was charged with a felony offense. He requested an attorney, but his request was denied because Florida law only provided for appointed counsel in death penalty cases. In Gideon, the U.S. Supreme Court held only that any person charged with a felony offense is entitled to counsel. In later decisions, Argersinger v. Hamlin and Scott v. Illinois, the U.S. Supreme Court expanded their holding in Gideon to include any offense, regardless of whether it is a felony or misdemeanor, if the defendant will be sent to jail. In 2002, in Alabama v. Shelton, the U.S. Supreme Court held that a defendant is entitled to court-appointed counsel even if they receive a suspended, or probationary, sentence because there is still the possibility of jail time if there is a probation revocation.

When Does the Right to Counsel Apply in South Carolina?

South Carolina’s magistrate and municipal courts, at the direction of our state’s former Chief Justice, have not been providing counsel to defendants even when judges are sentencing those defendants to jail time.

New Directive from the New Chief Justice

South Carolina’s current Chief Justice recently issued a memo instructing all magistrates and city judges to follow the law and either appoint attorneys or obtain a waiver of counsel for defendants who will be subject to jail sentences. Many courts and law enforcement agencies are now complaining about the Chief Justice’s directive. For example, “a Richland County Sheriff’s Department official says the directive has created a ‘nightmare’ for the agency.” In addition to being forced to follow the law and provide lawyers for indigent defendants, courts across the state are now reviewing thousands of arrest warrants that were issued for defendants who did not appear in court or who did not pay their fines. The courts now must identify the cases where judges did not appoint counsel or obtain a waiver of counsel and withdraw those bench warrants.

Outside Pressure from NACDL, the ACLU, and Media

The National Association of Criminal Defense Lawyers (NACDL), the ACLU, and The Foundation for Criminal Justice have released two studies, one in 2009 and one more recently, on the state of indigent defense in SC and both reports slammed South Carolina courts’ failure to follow the law and protect the constitutional rights of defendants. The ACLU’s Criminal Law Reform Project has filed a class-action lawsuit against the SC municipalities of Beaufort and Bluffton asking the federal courts to force SC’s municipal courts to follow the law and provide counsel for defendants that face jail time. The NY Times recently reported on the constitutional deficiencies of South Carolina’s summary courts in an article that includes shocking accounts of real defendants and observations from the courtroom. You have the right to counsel in South Carolina anytime your charges will subject you to jail time. It remains to be seen whether the combined pressure from the Chief Justice, the ACLU, federal lawsuits, and reporting by major media organizations like the NY Times will bring SC’s courts into compliance with the Constitution…

Charged with a Misdemeanor Offense in SC Courts?

We believe that every person who cannot afford an attorney should be provided with effective assistance of counsel in the magistrate and municipal courts. Coastal Law, LLC, is a private law firm, however – we are not public defenders. When you can afford an attorney, you should look for a law firm that knows the local courts, police, and prosecutors and that has the experience you need to get your case dismissed, negotiate the best possible outcome, or try your case to a jury. Call your Myrtle Beach criminal defense lawyer now at (843) 488-5000 or fill out our online form to set up a free, confidential consultation.

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