Gideon Alert: Flagrant constitutional violations just a by-product of Utah’s Justice Courts’ revenue machine

BY David Carroll on Thursday, May 27, 2010 at 9:39 AM

The Salt Lake City Weekly has published an excellent spotlight report on the problems of Utah’s Justice Courts (Nickled and Dimed by Utah Justice Courts, 5/27/2010).  There are 134 Justice Courts throughout Utah’s 29 counties, each of which has jurisdiction over class B and C misdemeanors, violations of ordinances, small claims, and infractions committed within its geographical area.  Justice Courts are not currently courts of record - meaning that no recording of the proceedings is required or made - and are determined by the boundaries of local government entities, such as cities or counties, which directly appoint the judges.  Only a high school diploma is required to be appointed a judge in Utah’s Justice Courts.

Utah is one of only two states that provide no state money to ensure the proper representation of indigent defendants (Pennsylvania is the other).  It is therefore not surprising that the article describes judicial systems intent on raising revenue for Utah’s municipalities and counties, without adhering to constitutional right to counsel guarantees.  Several Alabama v. Shelton  violations are described throughout the story – like a Salt Lake City Justice Court judge denying counsel to a clearly indigent defendant because he was not in jeopardy of serving jail time, only minutes after telling him that he could be jailed for not complying with court-mandated treatment.

In 2002, the United States Supreme Court determined in Shelton that a suspended sentence cannot be imposed unless an indigent defendant is provided with an attorney during the prosecution on the charge – it is insufficient to wait until a probation revocation hearing to provide the defendant with a lawyer.  The Shelton Court held that, if the individual was not afforded counsel at the time of the original charge, the judge is foreclosed from incarcerating that individual for failing to comply with one or more of the conditions stemming from probation or a suspended sentence.  Examples of such conditions, as detailed in the news article, include attending drug treatment, observing a curfew, maintaining employment, or paying fines and court costs.

In talking to lower court judges all across this country, NLADA has heard many frank acknowledgements that judges simply will not appoint counsel if they do not plan on sentencing a person to jail immediately, because it would be too costly to do so.  Unless a defendant is charged with a serious misdemeanor (such as driving under the influence, driving without privileges, battery, domestic violence, etc.), they know they will not send a defendant to jail and will instead put the defendant on probation with various conditions and a requirement to pay fines and court costs.  If a defendant successfully completes probation, then in the view of the judges this is “no harm, no foul.”  If a defendant is later alleged to violate a condition of probation, then the judge will appoint a lawyer to represent the defendant at the probation revocation hearing, where it will be decided whether they are now going to jail -- in direct violation of Alabama v. Shelton

This, of course, was exactly the factual situation before the Supreme Court in Shelton and is exactly what the Supreme Court plainly said is prohibited by the Constitution.  And yet it is the norm in far too many lower courts - not only in Utah, but all across this country from New York to Idaho, and from Michigan to Texas.   

“Where the State provides no counsel to an indigent defendant, does the Sixth Amendment permit activation of a suspended sentence upon the defendant’s violation of the terms of probation?  We conclude that it does not.  A suspended sentence is a prison term imposed for the offense of conviction.  Once the prison term is triggered, the defendant is incarcerated not for the probation violation, but for the underlying offense.  The uncounseled conviction at that point ‘result[s] in imprisonment,’ it ‘end[s] up in the actual deprivation of a person’s liberty.’  This is precisely what the Sixth Amendment, as interpreted in Argersinger and Scott, does not allow.”  Alabama v. Shelton, 535 U.S. 654 (2002)