Imagine getting arrested, hauled into court, prosecuted, convicted, and thrown behind bars for weeks without having ever been provided a lawyer — or without even being told that you have the right to one.
Under the Sixth Amendment of the Constitution, that should never happen.
But that’s exactly what was occurring in South Carolina until 2017, when the American Civil Liberties Union (ACLU) sued the City of Beaufort and the Town of Bluffton for systematic violations of the right to counsel in their municipal courts.
This week, the national ACLU, along with the ACLU affiliate in South Carolina, and our partners at Nelson Mullins Riley & Scarborough LLP, entered into a court-ordered settlement agreement with Beaufort and Bluffton to end the denial of counsel to people who are poor and facing incarceration in those cities’ municipal courts.
The settlement will also compensate our plaintiffs — Tina Bairefoot, Nathan Fox, and Dae’Quandrea Nelson — for attorney’s fees and injuries that they suffered as a result of the violation of their constitutional rights.
This settlement provides a clear road map for all cities in South Carolina to ensure the protection of the right to counsel. Moving forward, Beaufort and Bluffton will contract with the 14th Judicial District Public Defender to provide a lawyer to anyone who can’t afford one and is facing the possibility of incarceration.
The agreement also mandates that the cities properly advise people of their right to counsel, and ensure that anyone who waives that right does so knowingly and voluntarily. It prohibits trials in absentia for anyone facing the possibility of incarceration. The settlement will include funds for an investigator, administrator, social workers, and other experts. Every month, the cities will provide their dockets to the ACLU, which will monitor the public defender caseload to ensure that their representation in municipal court is not compromised by an excessive workload.
A lawyer could have helped Tina Bairefoot present medical documentation — relevant both to her guilt and her punishment — to the judge prior to convicting and sentencing her to jail.
A lawyer could have helped Dae’Quandrea Nelson successfully seek a continuance to complete community service hours instead of being thrown in jail, and would have challenged the arresting officer’s mistaken identification at trial.
A lawyer would have known that one of Nathan Fox’s jail sentences was illegal as a matter of South Carolina law.
Simply put, the difference having a lawyer makes for someone charged with a crime is akin to the difference having a doctor makes for someone needing advice and possible surgery for a medical condition.
These reforms are critical. Local jail populations in smaller counties have grown drastically over the past 45 years, serving as a major driver of mass incarceration nationally. A recent study by the Vera Institute for Justice shows that between 2003 and 2013 pretrial incarceration rates declined 13 percent in large urban counties, but increased 26 percent in rural counties.
South Carolina’s municipal courts, like summary courts across the country, have been part of the problem.
A Failure of Funding
As documented in a report by the National Association of Criminal Defense Lawyers and ACLU, poor people were being prosecuted in municipal courts throughout the state in the absence of counsel, simply because cities refused to fund public defense.
In some municipal courts, judges do not have law degrees, and cases are prosecuted by police officers. The harmful impact on people left defenseless in these courts is profound, and includes being locked up in a cage away from family, work, caregiving and needed medications.
Lack of defense in these cases also leads to criminal convictions that have lifelong consequences on access to housing, employment, financial aid, parental rights, and immigration status—along with the financial burden of an array of fines and fees.
Adding insult to injury, municipal courts in South Carolina are optional. Cities could shut them down tomorrow.
With zealous advocacy by an attorney, people are more likely to remain free before trial. Investigation can reveal holes in the prosecution’s case and result in earlier and fairer resolutions. With investigation, individuals can effectively raise defenses to the charges and expose inconsistencies in witnesses’ testimony, and wrongful convictions can be reduced. Judges and prosecutors can better understand the life circumstances and needs of the defendant, so that sentences are more proportionate to the offense and culpability of the individual, with fewer sentences of incarceration.
Simply put: the outcomes are more just.
The settlement reached this week will bring greater fairness to these two cities and, hopefully, have an impact across South Carolina. The message is clear: Cities must protect the constitutional rights of people who stand accused in their municipal courts.
Any city that cannot afford or would prefer not to pay for such protections must close these courts. After all, if the government can’t afford to defend, it can’t afford to prosecute, either.
Ezekiel Edwards is Director of the ACLU’s Criminal Law Reform Project, which seeks to end over-incarceration, over-criminalization and racism in the U.S. criminal legal system. He welcomes comments from readers.