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Penalizing and Chilling an Indigent’s Exercise of the Right to Appointed Counsel for Misdemeanors

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ABSTRACT: While Gideon v. Wainwright is widely and justly celebrated for extending the right to the appointment of counsel to all indigent defendants charged with felonies, Gideon’s application to misdemeanors is less well-known and more limited. In Scott v. Illinois, the Supreme Court restricted Gideon to misdemeanants actually sentenced to imprisonment. That is, the Scott “actual imprisonment” standard declines to extend Gideon to indigents with trial outcomes of either acquittal or conviction with a non-imprisonment sentence. Because only a post-trial outcome governs whether the Gideon right to counsel applies prior to and during trial, the “actual imprisonment” standard illogically places the cart before the horse. Despite strong criticism from both judges and commentators, the Supreme Court has repeatedly declined to fully extend Gideon. Overlooked amidst the more obvious and glaring deficiencies is perhaps a more powerful argument against Scott’s “actual imprisonment” standard: It forces an indigent to choose between the assistance of appointed counsel (but at the price of eligibility for the harsher punishment of imprisonment) versus avoiding eligibility for harsher punishment (but at the price of lacking the assistance of counsel). Because an indigent may eliminate the prospect of harsher punishment by not exercising the right to appointed counsel, this Essay advances the novel claim that Scott’s “actual imprisonment” standard may unconstitutionally penalize and chill an indigent’s exercise of the right to counsel.

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