5 Wm. Mitchell J.L. & Prac. 1
By: Eric Wolf[Y]
Surprising, perhaps, to some, but apparently true: economic inequality itself, as distinguished from absolute poverty, tends to increase the rates of crime and social unrest. James Madison asserted as much in Federalist 10, writing that “the various and unequal distribution of property” is “the most common and durable source” of conflict, and modern social science supports the idea. Inequality is correlated most strongly with homicide, but also with rape, child abuse, robbery, and various other crimes and social ills.
Unsurprisingly, the level of economic inequality in the United States is by any measure extreme. A few comparisons from the data will suffice to make the point. Our current degree of inequality has few historical precedents. In the 1920s, the heart of the laissez-faire Lochner era, the richest 10% of the country by income earned on average 43.6% of the total; in 2007, the top 10% earned over 49% (and they would have had an even larger share if capital gains were included). Even the Roman Empire—a civilization that relied on slave labor—seems to have been more egalitarian than the United States today. For a current international comparison, the richest 10% of Japanese own 39% of their country’s wealth, while the richest 10% of Americans own 70% of their country’s wealth. The impact of this inequality on people’s lives is not softened by America’s unequaled social mobility, because that mobility is now largely a myth: Americans who live in poverty are less likely to escape it than are similarly disadvantaged citizens of many European countries, including the supposedly class-ridden UK. A child born in the U.S. into the poorest wealth quintile is almost twice as likely to remain there as to rise into the next highest quintile, while Americans from families in the highest quintile are similarly unlikely to escape the circumstances of their birth.
The relation between economic inequality and crime is not, however, just that of a cause to its direct effect. There are other plausible paths by which economic inequality, by increasing the crime rate, can spread its influence through the criminal justice system in ways that further increase inequality, causing more crime, causing still more inequality, and so on, generating a downward spiral that drives rich and poor farther apart. We have seen that inequality tends to increase the crime rate, and a higher crime rate will tend to increase the number of people sentenced to incarceration and other kinds of punishment. But the crime rate is only one factor influencing trends in punishment; indeed, one study found that higher crime rates explained only 12% of the increase in the number of state prisoners in the U.S. between 1980 and 1996. Inequality can also lead to more punishment in less direct ways.
Another way in which inequality can result in increased punishment is by placing greater demands on the already over-burdened and slow to adapt public-defender system: more crime may lead to indigent populations receiving a lower quality of representation and, consequently, higher rates of conviction and longer sentences. Additionally, there is evidence that more unequal societies tend to be more punitive, subjecting criminals to longer and harsher sentences. Plausibly, then, economic inequality can increase both the rate of crime and the severity of the sentence for any given crime.
The resulting increase in punishment can in turn lead to further increases in economic inequality, for another turn of the downward spiral. There are at least two paths by which this might happen. First, a society that has to allocate more resources to criminal justice will have fewer resources to spend on education, social welfare, and other public goods that are more important to the less well off. Secondly, increased punishment will tend to have a greater destabilizing effect on the already precarious lives of the poor, from whose ranks criminal defendants largely come. Fines generally hit the poor harder than the rich, for example. And a person who receives a jail sentence rather than some other punishment, or a longer sentence rather than a shorter one, will spend more time removed from his family, from social networks, and from the labor force. To give just one indication of the economic effects of harsh sentencing, incarceration lowers the total earnings of a black man by 9% on average. There is strongly suggestive evidence that it is in fact incarceration, not arrest and conviction, that reduces a person’s economic expectations. If it is incarceration that limits earnings, then it is likely that harsher sentences will have greater effects on people’s future earnings. Still more seriously, if increased demands on the legal system lead to more unsolved crimes and wrongful convictions, offenders will remain in their communities where they will carry a risk of re-offending. All of these possible consequences of increases in crime and punishment tend to destabilize the most vulnerable levels of society and to separate them further from higher income groups.
Given the current extreme and increasing level of economic inequality and its potential self-reinforcement via the justice system, we may well ask precisely how the legal system has contributed to this state of affairs and what should be done about it. These questions matter for all of us, not just for the poor who are being left farther behind, because unequal societies are less stable and prosperous overall, to the detriment of rich and poor alike. The present paper is intended to encourage and focus such reflection by clarifying where, and to what extent, equal protection arguments can succeed in advancing equality. In particular, this paper is concerned with the equal protection basis of the right to counsel and the provision of counsel for indigent defendants. These issues provide a case study of how equality advances—or halts.
Specifically, the paper has two main concerns, one general and the other narrower and more practical. The general concern is with the notion of equal protection and the question of how far equal protection claims can be used to reduce economic inequality. Looking at the Supreme Courts of the United States and Minnesota, I show that the courts typically adopt a quite broad conception of equal protection, but are hesitant to use it to protect criminal defendants’ procedural rights or other legal rights in general, except in some narrowly circumscribed and very clear cases of unequal treatment by the laws. Similarly, the courts usually, though not always, resist using equal protection arguments to reduce economic inequalities.
This paper’s narrower, more practical concern is with the right to counsel and the recent Minnesota case of Morris v. State. The right to legal assistance lies at the intersection of several important and difficult issues. Defendants’ right to “the assistance of counsel” in criminal proceedings, enshrined in the Sixth Amendment, is one of our most important legal principles. Yet in practice that principle is limited by courts’ reluctance to grant the right to every possible kind of defendant in any kind of proceeding, and by the states’ inability to afford counsel for every defendant who might want it. Courts have struggled with how best to balance the right to counsel with the realities of state finances while respecting the principles of due process and equal protection. Morris has implications for all of these issues. In Morris, the court held that the right to counsel extends to misdemeanor defendants seeking a first review by postconviction proceeding, but that such defendants are not entitled to representation by a public defender. In that opinion, I show, the state supreme court again adopted an expansive notion of equal protection. But I argue that subsequent rulings concerning the funding of indigent defense are contrary to that understanding of the principle and could potentially increase inequality in some of the ways I have suggested.
I begin, in Part 2, with a review of the grounds of the right to counsel: the Sixth Amendment, due process, and equal protection. I show that the U.S. Supreme Court, in its right-to-counsel cases, has employed two forms of equal protection analysis, one narrow and one broad. The federal doctrine on equal protection influenced the Minnesota Supreme Court’s reasoning in Morris, which employed the broad, majority form of equal protection. When the state court announced its opinion in Morris, some observers were surprised that the court relied primarily on due process grounds and only to lesser degree on equal protection. But that result should not have been surprising: as I show, the tendency in such cases is to construe equal protection fairly broadly but not to use it as a ground for recognizing new rights. Part 3 presents an analysis of the Morris case, including the court of appeals opinion which the supreme court over-turned. A comparison of these two opinions shows how they echo earlier federal arguments about the proper scope of equal protection and about the foundations of the right to counsel. Part 4 addresses the implications of Morris and subsequent Minnesota cases, including the recent case of Rice Co. v. Randolph, for the funding of public defense. These later cases give an answer to the question, raised but unanswered in Morris, of how best to fund indigent defense. I suggest that a county-funded system of public defense, which is available for some defendants, is both inadequate as a way of providing for indigent defense and inconsistent with the broad, majority view of equal protection which the court endorsed in Morris. Much the best solution is for the State to support an adequate state-wide system of indigent defense. The paper ends with some remarks about the prospects for equal protection arguments to reduce economic inequalities, concluding that the role of equal protection in reducing inequality is small and getting smaller.
2. Sources of the Right to Counsel
This section narrows our focus from broad social trends to the detailed workings of the law. The right to counsel provides an important case study of how economic inequality and criminal justice interact. Indeed, that right is a key link between the two: the right to counsel is most important to indigent defendants, of course, and the decision of whether, and how, that right may be vindicated can have a decisive effect on the outcome of such defendants’ cases. The right to counsel can thus be an effective means of stopping—or accelerating—the growth of inequality. This section reviews the legal sources of the right to counsel. Although our main concern is with equal protection, this section begins with a brief survey of other grounds of that right.
A. The Sixth Amendment and Due Process: A Shifting Relationship
The right to counsel has three Constitutional sources: the Sixth Amendment, the Due Process Clause, and the Equal Protection Clause. The Sixth Amendment gives the most direct statement of the right, that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” However, this bald statement raises several questions, which the U.S. Supreme Court has not answered with complete clarity or consistency. One such question is how the Sixth Amendment right is related to another ground of the right, due process.
Generally, the Court has viewed the right to counsel as an essential element of due process, ultimately independent of, and more fundamental than, the Sixth Amendment. The first significant federal indigent-defense case was Powell v. Alabama, which recognized the right of indigent capital defendants incapable of making their own defense to appointed counsel. The Powell Court found that right primarily not in the Sixth Amendment, but in the Due Process Clause. The Court reasoned that because the right to counsel is one of the “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,” it is an essential component of due process, regardless of any other constitutional or statutory provisions for such a right.
Johnson v. Herbstextended the Powell holding to federal felony defendants. Johnson is famous for its holding that the Sixth Amendment right is jurisdictional, but the opinion also quoted at length from Powell and endorsed that opinion’s view of the right to counsel as essential to due process: “[e]ven the intelligent and educated layman has small and sometimes no skill in the science of law. . . . He requires the guiding hand of counsel at every step in the proceedings against him.”
A different view of the relation between the Sixth Amendment and due process appeared in Betts v. Brady, which held that the Sixth Amendment is not incorporated into the Fourteenth Amendment and so does not apply to the states. Rather, the Fourteenth Amendment grants state defendants protection of due process, “a concept less rigid and more fluid” than the Sixth Amendment right to counsel. On this view, the Sixth Amendment is a fundamental, categorical right (limited to federal defendants), while the due process right available to state defendants is less determinate and fundamental. What due process requires is to be judged by “the totality of facts” of a given case: it requires the appointment of counsel only if that is needed for “fundamental fairness.” A categorical or blanket rule granting the appointment of counsel for indigent defendants would, the Court wrote, ignore relevant distinctions “between criminal charges of different magnitude or in respect of courts of varying jurisdiction”: a categorical rule would require appointments not just in capital and felony cases, but also, absurdly, in “small crimes tried before justices of the peace” and even in “trials in the Traffic Court.” Betts is thus an early instance of a Court recognizing practical limits to this fundamental right.
Of course, one court’s reductio ad absurdum is another’s modus ponens, or sound inference, and as we shall see, later decisions would extend the right to counsel to defendants accused of “small crimes” and to various forms of appellate proceedings. To give one example, Argersinger v. Hamlin recognized a due process right to counsel in trials for “misdemeanor and petty offenses” if there is a threat of actual imprisonment. The Court reasoned that the distinctions alluded to in Betts between more- and less-serious crimes are immaterial to the right to counsel. Morris, discussed in Part 3, is another case that held that distinctions like those emphasized in Betts are irrelevant for important procedural rights.
Prior to those decisions, however, Betts was overturned by Gideon v. Wainwright, which rejected Betts’ “fluid” case-by-case approach and held that the right to counsel is an essential component of due process: “reason and reflection require us to recognize that . . . any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him”; the right to counsel “may not be deemed fundamental and essential to fair trials in some countries, but it is in ours.” The Gideon Court employed a selective-incorporation reading of the Fourteenth Amendment and held, contrary to Betts, that the Sixth Amendment right to counsel is one of the fundamental rights that applies to the states through the Fourteenth Amendment. The Gideon Court thereby held, as in Johnson, that the Sixth Amendment right is grounded in a fundamental notion of fairness and guarantees counsel for indigent felony defendants. With Gideon and its extension to misdemeanors by Argersinger, the right to the appointment of counsel was clearly established as an essential component of fair trials.
Because the Sixth Amendment’s references to “the accused,” “his defence,” and “criminal prosecutions” arguably limit the right to counsel to first-stage trials, due process considerations loom larger than the Sixth Amendment in cases concerning the right to counsel on appeal. Ross v. Moffitt has been influential on this issue. Unusually, the Ross opinion clearly distinguished due process (“fairness between the State and the individual dealing with the State”) from equal protection (“disparity in treatment by a State between classes of individuals whose situations are arguably indistinguishable”). The Court then noted that because the appellant intended to use his appeal “as a sword to upset the prior determination of guilt” rather than as “a shield to protect him from being ‘haled into court’ by the State and stripped of his presumption of innocence,” and because the primary purpose of discretionary review in the state of origin was to evaluate matters of “significant public interest” rather than to pass judgment on the individual appellant, due process does not entail a right to counsel in discretionary appeals.
A series of later cases re-affirmed and refined the limits of the due process right to counsel on appeal. After Douglas v. California recognized a right to counsel on first appeal of right, Evitts v. Lucey recognized a due process right to effective assistance of counsel on first appeal of right. Halbert v. Michigan granted a due process right to counsel in a first appeal of a guilty-plea conviction, even though such a review under state law was discretionary, because in the state’s system, when a defendant applies for leave to appeal, the intermediate appellate court judges the merits of the claims he makes in the application, and the defendant is unlikely to make his case effectively without the assistance of counsel. However, in Pennsylvania v. Finley, the Court stopped the expansion of the due process right to counsel: the Court re-affirmed the reasoning of Ross, holding that because postconviction relief is even farther from the trial, where there is a due process right to counsel, than is a discretionary review, where there is no such right, there is a fortiori no due process right to counsel in collateral challenges.
This rough history is intended merely to provide some orientation and background to the right to counsel and to introduce some of the views and cases, like Douglas and Finley, that are important in understanding Morris. More central to the argument of this paper is the principle of equal protection, both its grounding of the right to counsel and the scope of its application in general. That is the subject of the next section.
B. Equal Protection: “A Philosophy of Leveling”?
Section 1 of the Fourteenth Amendment, enacted in 1868, states in part that “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The Amendment was enacted, without the participation of representatives of Southern states, to void the Black Codes that had been used in the South to impose harsher criminal penalties on blacks than on whites, among other things. As an important early case noted, with an uneasy mix of liberalism and racism, the purpose of the Equal Protection Clause was to “secure to a race recently emancipated, a race that through many generations had been held in slavery, all the civil rights that the superior race enjoy.” Nonetheless, the amendment does not mention race specifically, but says more generally that “any person” shall enjoy equal protection of “the laws.” The generality of the amendment was recognized by the U.S. Supreme Court six years later. In Yick Wo v. Hopkins, the Supreme Court held that the provisions of the Fourteenth Amendment “are universal in their application, to all persons within the territorial jurisdiction without regard to any differences of race, of color, or of nationality. . . .”
Turning to the narrower issue of the right to counsel, we find a number of cases in which equal protection has been used as a ground for that right. There are, however, difficulties in understanding such equal protection arguments, because the courts have not been clear about the factors that determine whether an equal protection or due process analysis applies, nor about how the two kinds of analysis are related to one another.
There are a few U.S. Supreme Court right-to-counsel cases that rely explicitly and primarily on equal protection considerations. In Griffin v. Illinois, which recognized indigent appellants’ right to a free trial transcript, the Court famously wrote that “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” And three years later, in Burns v. Ohio, the Court held unconstitutional on the same grounds a requirement that indigent defendants pay a filing fee before moving for leave to appeal: “The imposition by the State of financial barriers restricting the availability of appellate review for indigent criminal defendants has no place in our heritage of Equal Justice Under Law.” These cases are clear examples of equal protection being use to block the downward spiral from economic inequality to differences in legal treatment to greater economic inequality.
More often, however, equal protection and due process considerations are advanced together to reach a decision, and without being clearly distinguished from one another. As the Supreme Court itself noted in Ross, “[t]he precise rationale for the Griffin and Douglas line of cases has never been explicitly stated, some support being derived from the Equal Protection Clause of the Fourteenth Amendment, and some from the Due Process Clause of that Amendment.” In spite of Griffin’s repeated references to “equal justice,” for example, that opinion seems to conflate equal protection and due process: “[O]ur own constitutional guarantees of due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations . . . . Both equal protection and due process emphasize the central aim of our entire judicial system-all people charged with a crime must, so far as the law is concerned, ‘stand on an equality before the bar of justice in every American court.’”
Douglas also reaches its result through somewhat indistinct considerations of both equal protection (“where the merits of the one and only appeal an indigent has as of right are decided without benefit of counsel, we think an unconstitutional line has been drawn between rich and poor”) and due process (“[w]hen an indigent is forced to run this gauntlet of a preliminary showing of merit, the right to appeal does not comport with fair procedure”).
Even the Ross Court, which (as noted above) showed rare self-awareness in distinguishing equal protection from due process arguments, is not as clear as it might have been. After reviewing the relevant precedents, the opinion considers the proposed due process right to counsel in a discretionary appeal, and finds there is no such right. The opinion then turns to equal protection and states significantly, in a passage that will be quoted by the Minnesota Court of Appeals in Morris, that
[d]espite the tendency of all rights to declare themselves absolute to their logical extreme, there are obviously limits beyond which the equal protection analysis may not be pressed without doing violence to principles recognized in other decisions of this Court. The Fourteenth Amendment ‘does not require absolute equality or precisely equal advantages,’ . . . nor does it require the State to ‘equalize economic conditions.’
Under this heading of “equal protection,” however, the Court subsequently advances due process considerations in rejecting the appellant’s claim of a right to counsel in a discretionary review: because the appellant had the assistance of counsel in preparing his appellate brief for the state court of appeals, and because the state supreme court had primarily a policy-making rather than an adjudicatory function, the appellant has no right to the assistance of counsel in his first discretionary appeal.
Why is this lack of clarity important and how is it to be explained? It is important for two reasons. First, equal protection is a central concern of this paper, so that principle needs to be distinguished clearly from others. More importantly, in early right-to-counsel cases, a broad right, such as the Griffin right to a free transcript on appeal, might be entailed equally by several principles, but in more recent cases where a narrower, less certain right is at issue, such as the misdemeanant’s right to counsel in a first review by postconviction proceeding at issue in Morris, the right might be supported by one principle but not by others. In those situations it is important to be precise about the principles involved and their consequences.
One explanation for the lack of clarity in right-to-counsel cases is that some jurists have seen equal protection claims as disreputable—“the last resort of constitutional arguments,” as Justice Holmes called them. Indeed, one commentator has claimed that “modern indigent access law . . . can be defined by the Supreme Court’s attempt to stop the expansion of equal protection analysis into new areas.” Due process, on the other hand, has often been regarded as a sounder and more useful principle. Justice Frankfurter, for example, called it “perhaps the least frozen concept of our law . . . the most absorptive of powerful social standards of a progressive society.” And Justice Harlan II, who had little use for equal protection, was an influential advocate of the power and scope of due process. These biases might explain the tendency of some courts to treat equal protection as subordinate to due process, without bothering to distinguish the two clearly.
Another explanation of the conflation of the two principles lies in the fact that equal protection and due process arguments will almost always lead to the same result, as the Court has sometimes recognized. Thus there is little incentive for courts to distinguish them clearly. However, it is possible for equal protection to figure in divergent lines of thought that produce different results in a given case. That is possible because, as will be important for understanding Morris, there are two recurring conceptions of equal protection, one broad and one narrow.
The wide view is the majority interpretation and is summed up in the oft-quoted principle from Griffin that “there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” What exactly that means in practice varies from court to court, but that basic idea is clear enough: poverty should not bar a defendant from important procedural rights, where what is considered “important” is determined by due process considerations, state law, or an intuitive sense of justice. On the narrow, minority, view, on the other hand, the broad interpretation of equal protection goes beyond Constitutional limits in impermissibly advancing “a philosophy of [economic] leveling,” in Justice Harlan’s phrase from his dissent in Douglas, imposing on the states “an affirmative duty to lif[t] the handicaps flowing from differences in economic circumstances.” As the classic statement from Ross, quoted above, put it, “The Fourteenth Amendment does not require . . . the State to ‘equalize economic conditions.’” According to this narrow conception, equal protection requires only (as Harlan again put it) that the states not discriminate against the poor as such. The idea seems to be that what is prohibited is only an explicit property qualification for the exercise of a right, or a requirement that excludes the poor, however they are identified, from some opportunity, even if they could find a way to meet the requirement (say by having a benefactor pay the applicable fee). For whatever reasons, defenders of the narrow conception of equal protection hold that it does not require a “leveling of the playing field” (to use a phrase that we shall see again) within the justice system. What is permissible, according to the narrow view, is setting a reasonable cost for government services, even if those costs fall harder on the poor than on the rich—as, of course, they invariably will.
The division between these two conceptions of equal protection goes back at least to Plessy v. Ferguson, where the majority relied on a narrow view of the principle. In defending a limited view of equal protection, the majority wrote that “in the nature of things” the equal protection clause “could not have been intended to abolish distinctions based upon color, or to enforce social . . . equality.” Writing in dissent, Justice Harlan (grandfather of the Justice Harlan who dissented in Griffin and Douglas) expressed what was to become the majority position, that “in view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens.” There is no caste here . . . . In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful.”
The debate was essentially the same in Griffin, where the majority adopted a broad conception of equal protection, writing that “[i]n criminal trials a State can no more discriminate on account of poverty than on account of religion, race, or color. Plainly, the ability to pay costs in advance bears no rational relationship to a defendant’s guilt or innocence and could not be used as an excuse to deprive a defendant of a fair trial.” A state that grants appellate review cannot do so “in a way that discriminates against some convicted defendants on account of their poverty.” The four-justice dissent accused the majority of over-reaching: “Illinois is not bound to make the defendants economically equal before its bar of justice. . . . The Constitution requires the equal protection of the law, but it does not require the States to provide equal financial means for all defendants to avail themselves of such laws.” That criticism was echoed by Justice Harlan in his separate dissent. Justice Frankfurter replied to this objection in his concurrence:
Of course a State need not equalize economic conditions. A man of means may be able to afford the retention of an expensive, able counsel not within reach of a poor man’s purse. Those are contingencies of life which are hardly within the power, let alone the duty, of a State to correct or cushion. But when a State deems it wise and just that convictions be susceptible to review by an appellate court, it cannot by force of its exactions draw a line which precludes convicted indigent persons, forsooth erroneously convicted, from securing such a review merely by disabling them from bringing to the notice of an appellate tribunal errors of the trial court which would upset the conviction were practical opportunity for review not foreclosed. . . . The State is not free to produce such a squalid discrimination.
There is, then, a long-running debate about the proper scope of equal protection. The two conceptions of that principle allow for due process and equal protection analyses to lead to contradictory results. The structure of that debate, which is apparent in a number of cases, is as follows. One justice adopts a broad view of equal protection and concludes that the principle guarantees a given right to a class of people. Another justice adopts a narrow conception of equal protection and finds it inapplicable to the facts of the case. The advocate of the narrow view then turns to a due process analysis and finds, in some cases, that due process does not entail the right at issue, or, if it does, that the benefit of the right is outweighed by its cost to the state. In such cases, equal protection and due process analyses lead to divergent results.
The reasons for this disagreement about the proper scope of equal protection are unclear, but several factors seem to be at work. One source of disagreement lies in routine differences about Constitutional interpretation and the scope of the Court’s authority. But more specific disagreements also seem to be involved. One concerns the causes and nature of poverty, which Justice Harlan II called a “natural disabilit[y]” which the state cannot (or should not?) remedy. Another involves the question, taken up below, of whether denial of a right to indigent defendants is a form of invidious discrimination, targeting a “discrete and insular” group. And a third concerns the kind of equality required by equal protection: does that clause mandate merely a formal equality of treatment, as Justice Harlan assumed, or does it require substantive equality in access to important stages of a criminal proceeding? Some of these issues will be discussed below, in Part 3.
Whatever the reason for the disagreement, Douglas did not end the debate. It continued, following the contours noted above, in Morris v. State, where the Minnesota Supreme Court rejected the lower court’s narrow view of equal protection and granted a right to counsel in a first review of a misdemeanor by postconviction proceeding.
3. Morris v. State
A. Background and Facts of the Case
The Minnesota Supreme Court tends to interpret the state constitution in a way that is consistent with the federal constitution, but in narrow circumstances, the state court may hold the state constitution to provide greater protection for individual rights in the light of “language, concerns, and traditions unique to Minnesota.” One of those traditions is a “lengthy and historic recognition of . . . the procedural protection for the rights of the criminally accused” that has often been in advance of federal law. Minnesota recognized the right to appointed counsel for misdemeanor defendants facing the possibility of incarceration five years before the U.S. Supreme Court recognized the right in Argersinger Deegan v. State extended Douglas to recognize a right to counsel in a first review of a felony conviction by postconviction proceeding. And whereas Pennsylvania v. Finley declined to extend the full procedural protection guaranteed for first appeals of right to collateral, postconviction proceedings, Morris v. State rejected such formal distinctions.
In December 1998, Jeffrey Morris stole two CD players from a Minnesota Target store. In February 1999, he stole a canvas from another shop. He was subsequently charged with two counts of misdemeanor theft. Representing himself, he pled guilty in March 1999, to two counts of misdemeanor theft, waiving his rights to representation by counsel and to a trial. He was sentenced to 90 days in the county workhouse for each count, with 45 days stayed for one year, and he did not pursue a direct appeal within the ten-day statutory window.
In December 2005, Morris, again acting pro se, filed a petition for postconviction relief, arguing that he was mentally incompetent when he pleaded guilty and waived his right to counsel and that his pleas should therefore be withdrawn. At that time the law seemed clear that indigents convicted of misdemeanors had no right to counsel in a first review by postconviction proceeding. The state postconviction remedy statute allowed defendants who believed their convictions violated their state or federal rights to petition for relief. That statute also provided for the representation of such indigent defendants by the public defender “under the applicable provisions of sections 611.14 to 611.27.” The former statute, however, granted appointed counsel only for a defendant “convicted of a felony or gross misdemeanor, who is pursuing a postconviction proceeding and who has not already had a direct appeal of the conviction . . . .” Consequently, defendants such as Morris, convicted of a simple misdemeanor, were not entitled to appointed counsel in a first review by postconviction proceeding.
Three months after Morris filed his petition, while it was still pending, the Minnesota Supreme Court expanded the state’s constitutional guarantee of the right to counsel to include even misdemeanor defendants seeking a first review by postconviction proceeding. Morris, still acting pro se, subsequently asked the district court to appoint counsel to represent him in his postconviction action, and the court directed that request to the state public defender, pursuant to Minnesota Statute section 590.05. The public defender declined to represent Morris, citing the limited requirements of section 611.14(2), granting the right to representation by the public defender to a defendant appealing from a felony or gross misdemeanor. Morris then requested the district court to hold section 611.14(2) unconstitutional and to appoint counsel for him, but the court declined both requests. Morris appealed and again requested the appointment of counsel. The court of appeals denied that request for counsel and, in 2008, ruled that section 611.14(2) is not unconstitutional: misdemeanor defendants seeking first review by postconviction proceeding do not have a right to counsel. The Minnesota Supreme Court then granted Morris’s appeal for further review.
B. The Argument from Deegan
Morris’s argument at the supreme court relied on Deegan v. State, which extended the right to counsel to a first review of a felony conviction by postconviction proceeding.  Morris argued that the same right should extend to misdemeanor defendants seeking postconviction relief.
At issue in Deegan was a 2003 amendment to section 590.05, stating that a defendant who pled guilty and received no greater than a presumptive sentence is not entitled to representation in seeking a postconviction remedy. In 2000, appellant Deegan, represented by the public defender, pled guilty to second-degree murder and kidnapping in exchange for a downward departure from the presumptive sentence. He did not pursue a direct appeal, but in October 2003, he requested the assistance of counsel in petitioning for postconviction relief. The public defender declined representation, citing the 2003 amendment to section 590.05, and the district court denied the appellant’s request on the basis of that statute and on the ground that there is no constitutional right to counsel for a postconviction action. The court of appeals denied the request for counsel on the same ground, but the Minnesota Supreme Court reversed.
The supreme court began its analysis in Deegan by noting that the Minnesota Postconviction Remedy Act was enacted in 1967 in response to uncertainty about whether the U.S. Constitution requires states to provide some form of review for alleged violations of the federal Constitution. The Act was given an important early interpretation in State v. Knaffla, which held in part that a petitioner seeking postconviction relief without first having taken a direct appeal “is entitled to raise nearly the same breadth of claims that could have been brought in a direct appeal . . . . Thus, a first review by postconviction proceeding is substantially similar in scope to a direct appeal.” This distinguishes Minnesota from other states, in which the failure to pursue a direct appeal bars all claims that were known and should have been raised on direct appeal.
The nature of postconviction review in Minnesota is significant, because, as the appellant noted, while the right to counsel does not extend to a collateral review, that right is guaranteed to a direct appeal as of right. Deegan argued that Minnesota’s first review by postconviction proceeding is not a collateral review within the purview of Finley, but is rather analogous to a direct appeal, and thus falls within the scope of Douglas. The supreme court indicated qualified agreement with Deegan’s position and suggested that federal law could be extended by applying the Douglas analysis to Minnesota’s procedure, citing the holding of Halbert v. Michigan that the Due Process and Equal Protection clauses require the appointment of counsel for indigent defendants in first-tier, discretionary review in Michigan. The Minnesota Supreme Court, however, chose not to rule on whether Douglas entailed a federal constitutional right to counsel in a first review by postconviction proceeding.
Having determined that a first review by postconviction proceeding is “substantially similar in scope” to a direct appeal, the court turned to the question of whether the assistance of counsel is required to make that review meaningful. The court re-stated its position that “under the Minnesota Constitution, a defendant’s access to the other protections afforded in criminal proceedings cannot be meaningful without the assistance of counsel.” And although Douglas was a federal case limited to direct appeals, the court was persuaded by its argument that “the quality of a defendant’s one review as of right of a criminal conviction should not hinge on whether a person can pay for the assistance of counsel.” The court concluded that “a defendant’s right to the assistance of counsel under Article I, section 6 of the Minnesota Constitution extends to one review of a criminal conviction, whether by direct appeal or a first review by postconviction proceeding.”
In short, Deegan stands for the proposition that the right to counsel may not be abridged by legalistic distinctions between direct appeal and postconviction proceedings. That holding plays an important role in Morris.
C. The Minnesota Court of Appeals Rejects Morris’s Request for Appointment of Counsel
At the Minnesota Court of Appeals, Morris was represented by the state public defender in his challenge to both the district court’s denial of appointment of counsel in his postconviction proceeding and the constitutionality of section 611.14(2) under the Minnesota Constitution. Morris’s argument that section 611.14(2) was contrary to article I, section 6 of the state constitution, relied on Deegan. However, the court concluded that Deegan is limited to its facts and therefore applies only to felony and gross misdemeanor defendants. The court reasoned that although Deegan extended the right to counsel to a first review by postconviction proceeding, it did so in a case involving a felony defendant. Moreover, the Deegan court decided the constitutionality of a statute that applied only to those who receive no more than a presumptive sentence and who thus could only be felony defendants. The court of appeals inferred that Deegan’s holding applied only to felony defendants, even though Deegan does not explicitly limit its holding in that way.
Further, although the court of appeals noted that the right to counsel on direct appeal “is based on equal-protection concerns,” it assumed a narrow view of those concerns. The court expressed skepticism about the scope of equal protection, quoting Ross’s caution that “the tendency of all rights [is] to declare themselves absolute to their logical extreme.” The next sentence in Ross, which was not quoted, says that equal protection “does not require absolute equality, . . . nor does it require the State to ‘equalize economic conditions.’” This makes it reasonable to infer that the court was at least sympathetic to the narrow interpretation of equal protection, and that it rejected the broad interpretation as an unconstitutional “philosophy of leveling.”
The dissenting appellate judge agreed that Deegan controlled, but rejected the majority’s “surgical approach” to that case, which, he wrote, “narrowly constru[es] its broadly stated holding and par[es] away one class of offenses from Deegan’s general proposition” that defendants have a constitutional right to one review of a criminal conviction, whether by direct appeal or by a first review by postconviction proceeding. Although the dissenting opinion does not use the phrase “equal protection,” it is grounded in that idea, arguing that there is no basis to distinguish the right to counsel of a misdemeanor defendant from that of a felony defendant. Citing Knaffla, the dissent notes that “[t]he right to first appeal for each level of offense arises from the same base.” Turning on its head the reductio ad absurdum used in Betts and Griffin to limit the right to counsel, the dissent continued:
the state constitutional provision that affords the right to assistance of counsel ‘[i]n all criminal prosecutions,’ Minn. Const. art. I, § 6, has been interpreted to apply even to administrative implied consent procedures during detention of drivers . . . . It is difficult to conceive that Article I, section 6, affords a drunk-driving misdemeanor defendant the right to counsel at the administrative stage of the proceedings under Friedman but would not extend to the same defendant after conviction on a first appellate review, simply because the offense is a misdemeanor.
This line of reasoning ultimately persuaded the Minnesota Supreme Court.
D. The Minnesota Supreme Court Applies Deegan’s Equal Protection Argument
The Minnesota Supreme Court rejected the Court of Appeal’s fact-specific reading of Deegan and concluded that “the right to counsel guaranteed by Minn. Const. art I, § 6 applies to Morris’s first review by postconviction proceeding”:
Morris asserts that the analysis we used in Deegan, when we held that Article I, Section 6 of the Minnesota Constitution guaranteed Deegan the right to counsel in a first review of Deegan’s felony conviction by postconviction proceeding, applies with equal force to a first review by postconviction relief in a misdemeanor case. We agree.
Although the court noted that its holding “is simply an application of the Deegan analysis in the context of a first review by postconviction proceeding in misdemeanor cases,” it reached its result through three discernible lines of argument.
First, the court reviewed Deegan’s conclusion that the state constitutional guarantee of the right to counsel applies to a first review by postconviction proceeding. In the Morris court’s analysis, this result follows from two steps. The first is the Douglas principle that “the quality of a defendant’s one review as of right should not hinge on whether a person can pay for the assistance of counsel.” This principle, however, was limited to direct appeals. The second step recognizes that the Knaffla right to a first review by postconviction proceeding cannot be meaningfully exercised without the assistance of counsel. A first review by postconviction proceeding, however, is analogous to a direct appeal. So, it follows that the constitutional right to counsel extends to a first review by postconviction proceeding.
Morris’s second line of argument begins with the postconviction remedy statute, which states in part that “[e]xcept at a time when direct appellate relief is available, a person convicted of a crime, who claims that . . . the conviction obtained or the sentence or other disposition made violated the person’s rights under the constitution or laws of the United States or of the state . . . may commence a proceeding to secure relief by filing a petition . . . to vacate and set aside the judgment.” Looking at the nature of the Knaffla right to postconviction relief even when no direct appeal is taken, the Morris court cited Knaffla’s observation that the “salient feature” of the statute is that “a convicted defendant is entitled to at least one right of review by an appellate or postconviction court.”
Morris’s third argument also concerns the postconviction remedy statute, specifically its reference to “a person convicted of a crime.” The court noted that the definition of a “crime” refers to “conduct which is prohibited by statute and for which the actor may be sentenced to imprisonment, with or without a fine.” Moreover, a misdemeanor is defined as a kind of crime. Therefore the postconviction remedy act applies equally to misdemeanors, and the state is wrong to argue that Deegan’s holding is limited to felony convictions.
As usual with right-to-counsel cases, Morris does not clearly distinguish due process and equal protection analyses. Someone looking for a “fundamental principle” in Morris could point to the due process conclusion that the Knaffla right cannot be meaningfully exercised without the assistance of counsel. But equal protection considerations were clearly also on the court’s mind, as seen in the quotation of the Douglas principle, from which the court seems to suggest Deegan’s holding follows directly. What is important for our purposes is that the court embraces a broad notion of equal protection: the court quotes the Douglas principle, implicitly rebukes the court of appeals’ narrow view of equal protection, and extends the right to counsel to indigent misdemeanants, across divisions of wealth and criminal classification.
Finally, it is important to note three respects in which the Morris court’s opinion is limited. First, the court did not hold that the state constitution confers on people convicted of crimes the right to one review of their convictions. Rather, the court held that so far as there was a statutory right to one review, the state constitution does guarantee the additional right to counsel at public expense to ensure that the statutory right is meaningful for all defendants, including indigent people.
Secondly, Morris did not rule on whether the Knaffla right to postconviction relief absent a direct appeal is guaranteed by the state constitution. The court noted simply that it followed Deegan and Knaffla in withholding judgment from that question. It is enough, Morris noted, that the Knaffla right is guaranteed by “the broad language of the postconviction remedy statute” and by case law.
Most relevantly, Morris did not address the question of how the new right is to be vindicated. Despite having concluded that Morris had the right to counsel at public expense in pursuing his postconviction action, the court declined either to invalidate section 611.14(2) (which denies mandatory representation by the public defender to misdemeanor defendants in first review by postconviction proceeding), or to mandate the appointment of a public defender to represent Morris.[169Y] Instead, in the absence of a legislative determination that the public defender must represent misdemeanants seeking postconviction relief, the court ruled that district courts should exercise discretion concerning whom to appoint.
E. The Morris Clarifies the Scope of the Court’s Power to Appoint Counsel
The court’s recognition of Morris’s right to counsel raised a secondary issue—whether that right required the appointment of a public defender to represent him. The court ruled that it did not: “Morris has failed to demonstrate beyond a reasonable doubt that the recognition that misdemeanor defendants have a constitutional right to court-appointed counsel for a first review by postconviction proceeding mandates the appointment of the SPDO [State Public Defender’s Office].”
The right to representation by the state public defender is granted by section 611.14(2) of the Minnesota Statutes, and this right “does not necessarily include every person who has a constitutional right to court-appointed counsel.” As an example of defendants who have a right to counsel, but who are not eligible for representation by the public defender, the court cited Argersinger v. Hamlin, which held that no one may be imprisoned “for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.” The Argersinger right did not always correspond with a right to representation by the state public defender. Misdemeanor defendants “were entitled by statute, case law, and our rules only to appointed counsel provided by other means.” Here the court cited State v. Borst, which extended the right to counsel to indigents charged with misdemeanors, in the absence of a statutory provision for public-defender representation. The reasoning from Borst provided a model for the Morris court.
The Borst court first asserted that the classification of crimes as “misdemeanors,” “gross misdemeanors,” and “felonies” is somewhat arbitrary and, as far as the right to counsel is concerned, irrelevant. Consequently, the right to counsel for defendants facing charges that might lead to incarceration was extended to misdemeanor defendants. Because existing law did not provide for representation by the state public defender, the court addressed the question of how the new right was to be vindicated. Acknowledging “the practical difficulties of applying the rule we announce here,” the court nonetheless insisted that
the possible loss of liberty by an innocent person charged with a misdemeanor, who does not know how to defend himself, is too sacred a right to be sacrificed on the altar of expedience. Any society that can afford a professional prosecutor to prosecute this type of crime must assume the burden of providing adequate defense . . . .
As for how that defense is to be obtained: “[t]here is no statutory provision for compensating appointed counsel in misdemeanor cases,” but “until the legislature can meet and make such provision for compensation, or extend the public defender system so that these cases are handled through its offices, it may be possible that counsel can be procured without great expense.”
The Morris court followed the same approach. After likewise extending the right to counsel to a class of misdemeanor defendants—those seeking post-conviction relief—the court addressed the issue of how that right is to be vindicated in such cases. The court held only that their recognition of the new right “does not compel us to affirmatively order . . . as a constitutional mandate, that the SPDO must provide that representation.” Instead, formulating a policy for how the new right is to be vindicated “involves public policy and funding issues that, in the first instance, are better left to the legislature.”
The question of how best to vindicate this new right to counsel, and to resolve the attendant policy and funding issues, thus returns us to the economic and social problems that began this paper. As it happened, a group of cases decided by the Minnesota Supreme Court in the wake of Morris suggests some possibilities. The following section discusses those cases and weighs the financial and legal merits of some of the available options.
4. Application: Equal Protection in Practice
The Morris court’s decision not to rule on the policy and funding issues involved in its expansion of the right to counsel leaves those questions unresolved. A set of more recent Minnesota cases, however, suggests one way of providing the additional representation needed for defendants like Morris: a county-based system for funding private counsel. Such a system, however, would be inconsistent with the broad notion of equal protection that courts have favored. The proposed system also raises the question of how far equal protection arguments could be used to assist the poor in general. Current law is not encouraging.
A. Problems of Indigent Defense Funding
As Judge Friendly of the Second Circuit has written, “[t]he most serious single evil with today’s proliferation of collateral attack is its drain upon the resources of the community—judges, prosecutors, and attorneys appointed to aid the accused.” And this drain hurts the same indigent defendants the expanded rights were intended to help, because a lack of resources is “the most fundamental reason” for the poor quality of indigent defense. Paradoxically, then, a measure aimed at eliminating unfairness, like the Morris right, could, by further burdening the justice system, actually increase inequality. If resources are held constant, then providing counsel for more defendants could lower the quality of representation provided to indigent people as a group, thus increasing the effectiveness-gap between the representation available to indigents and that available to defendants who pay for private counsel. To stop the downward spiral, it is important not to increase demands while holding resources constant.
Minnesota courts, like many others, have occasionally been explicit in their refusal to compromise basic rights for the sake of economy or expediency. But this idealism has been difficult to implement. The problems in Minnesota, though severe, are not exceptional or surprising. The public defender system has been subject to years of budget cuts. Just since Morris, funding to the State Board of Public Defense has been reduced by almost $2,000,000. And budget cuts naturally result in reduced numbers of public defenders: soon after 2000, thirty-six positions were eliminated, and from 2008 to 2010 another seventy-three positions were lost, leaving a state-wide total of 350. The reduced numbers of public defenders consequently face an increased and often unmanageable workload: in 2009, the estimated average load was 787 case units, nearly double the ABA recommendation of 400 case units. And predictably, an excessive workload sometimes results in a compromised quality of representation.
Minnesota has made a number of attempts at dealing with these issues. In 1992, the Chief Public Defender for the Fourth District (Minneapolis) initiated a suit against the state alleging that the lack of adequate funding for public defense resulted in the unconstitutional failure by the state to provide effective assistance of counsel for indigent defendants. Although there was no dispute over the material facts, the supreme court dismissed the suit for failure to show injury in fact. In 2003, the state attempted to raise revenue for public defense by removing the waiver provision of the co-pay statute that requires defendants benefitting from appointed counsel to contribute to their defense. However, the state supreme court found that without a waiver provision, the co-pay policy was unconstitutional, and the provision was restored.
Although Morris did not suggest a way forward, a group of subsequent cases has clarified the funding situation in a way that indicates the form that a sustainable and equitable solution to the problem of funding indigent defense should, and should not, take. The ultimate conclusion is that the Legislature must act to ensure adequate funding of a state-wide system of public defense.
B. How Not to Vindicate the Morris Right to Appellate Counsel
Child protection (CHIPS) proceedings present an indigent-defense situation that is structurally similar (but not identical) to that presented by Morris. Parents and minor children older than ten involved in such proceedings have a statutory right to counsel. Several individuals in a single CHIPS case might have a right to appointed counsel. The resulting burden on the public defense system can be heavy. Moreover, the Children’s Justice Initiative adds to the burden by fast-tracking the process and requiring public defenders to stay with their represented families (“vertical integration”). The number of CHIPS cases has increased significantly in recent decades, as has the number of public defenders per each CHIPS case: in 1995, public defenders handled over 4,000 of these cases, and the average number of defenders per CHIPS court filing was 0.7; by 2002, public defenders handled 10,278 cases, with an average of 1.7 defenders per filing.
In an attempt to alleviate these pressures, the Minnesota Board of Public Defense and the Public Defender petitioned the state in 2003 for relief. The petition specifically requested, inter alia, a limitation on the appointment of public defenders in CHIPS cases to one defender per case, a prohibition on appointing any individual defender to represent more than one party in a CHIPS case, and pre-screening prior to filing. Although the Minnesota Supreme Court recognized the fiscal crisis of the time and the threat it posed to the ability of public defenders in CHIPS cases to do their jobs, the court rejected the petition and noted that “[o]nly the legislature can provide genuine relief.”
In the face of legislative inaction, in 2008, the State Board of Public Defense stopped representing parents in juvenile protection proceedings. In response, Rice and Crow Wing Counties stopped paying for court-appointed private counsel in such proceedings, creating a situation, like that in Morris, in which the means of vindicating a statutory right to counsel was in dispute. The resulting litigation (“the CHIPS cases”), which presented similar issues and resulted in similar decisions, eventually reached the Minnesota Supreme Court.
The central issue in these cases was whether indigent parents’ statutory right to appointed counsel entails representation by a public defender, and alternatively, if private counsel is appointed, at whose expense? In S.L.J., the statute at issue was the Indian Child Welfare Act, which grants indigent Indian parents “the right to court-appointed counsel in any removal, placement, or termination proceeding.” In J.B., the relevant statutes were Minnesota Statute section 260C.163 subdivision 3(b), which states in part that if an indigent child or parent desires counsel, “the court shall appoint counsel to represent the child who is ten years of age or older or the parents or guardian in any case in which it feels that such an appointment is appropriate,” and section 611.26 subdivision 6, which states that “[t]he district public defender shall . . . represent a minor ten years of age or older in the juvenile court when so directed by the juvenile court.”
The Minnesota Supreme Court ruled that these statutes do not require representation by a public defender. The classes of individuals who are entitled to representation by a public defender are enumerated by section 611.14. There are four such classes:
(1) a person charged with a felony, gross misdemeanor, or misdemeanor including a person charged under sections 629.01 to 629.29;
(2) a person appealing from a conviction of a felony or gross misdemeanor, or a person convicted of a felony or gross misdemeanor, who is pursuing a postconviction proceeding and who has not already had a direct appeal of the conviction;
(3) a person who is entitled to be represented by counsel under section 609.14, subdivision 2; or
(4) a minor ten years of age or older who is entitled to be represented by counsel under section 260B.163, subdivision 4, or 260C.163, subdivision 3.
Because neither section 611.14 nor any of the other statutes at issue requires the district court to appoint a public defender to represent the parents in a juvenile proceeding, there is no “express authorization” for such representation, and the court declined to grant that authorization.
The counties had advanced a number of arguments in favor of mandatory public-defender representation of indigent parents in juvenile proceedings, but the court was not persuaded. The counties relied on section 611.16, which states that anyone who falls within any of the four classes described in section 611.14, “or any other person entitled by law to representation by counsel” may “request the court . . . to appoint a public defender to represent the person,” and on section 611.18, which states that “[i]f it appears to the court that a person requesting the appointment of counsel satisfies the requirements of this chapter, the court shall order the appropriate public defender to represent the person . . . .” The court found that although indigent parents are entitled by section 611.16 to request counsel, they are not among those listed in the four classes of section 611.14, and so the court is not required to appoint a public defender to represent them.
The counties also argued that section 260C.007, subdivision 22 limits their financial liability for appointing counsel. That statute provides that “[t]he expenses of legal custody are paid in accordance with the provisions of section 260C.331,” and defines “legal custody” as “the right to the care, custody, and control of a child who has been taken from a parent by the court” in a CHIPS or termination-of-parental-rights proceeding. The counties argued that this statute limits their liability under section 260C.331 to expenses related to custody of the child. The court rejected this construction and held that the language of section 260C.331—“The following expenses are a charge upon the county: . . . (4) reasonable compensation for any attorney appointed by the court. . .”—is unambiguous, and that it requires the counties to pay for private counsel for indigent parents in juvenile proceedings.
Crow Wing County also employed a cost-shifting argument, claiming that reductions in the aid it received from the state had lifted its obligation to pay for appointed private counsel. Until the late 1980s, the funding of public defense in Minnesota was primarily the responsibility of the counties. In 1981 the legislature created the Board of Public Defense to distribute state funds to the counties for public defense services. At the end of that decade, the legislature began transferring financial responsibility for public defense from the counties to the state. Aid to the counties was correspondingly reduced. The county argued that because its funding was reduced by more than the amount it was spending for representation in juvenile matters, the transfer included the cost of representing both parents and children in juvenile cases. However, the court found that the cost of public defense in juvenile cases was shifted only “to the extent those costs are assumed by the state,” and that the state assumed the cost of representing only minors in juvenile cases, and not their parents.
Taking a step back from the statutory details, we see the issues developing as follows. In the absence of some expression of legislative intent on how to vindicate the Morris right to appellate counsel, Morris left the appointment of counsel in such cases to the discretion of the courts. The CHIPS cases took the next step and found that in some situations, indicated by statute, if (as in Morris) there is no requirement of public defender representation for a defendant, the court may appoint private counsel, at the expense of the appropriate county. But what if there is no provision for providing either public defender representation or county-funded private counsel for an appellant exercising the right created by Morris? That question recently reached the Minnesota Supreme Court, in the case of State v. Randolph. The court there ruled that if the State does not provide funding for the misdemeanant’s appellate representation, his “right to counsel will have been violated, and his conviction must be vacated.”
Following a March 2009 incident, Walter Randolph was charged with misdemeanor domestic assault and three other misdemeanors. He was convicted of the domestic assault charge and, on the same day, he applied for public defender representation on appeal. Through a confused process, a district court judge appointed private counsel for Randolph’s appeal and ordered Rice County to pay “reasonable attorney’s fees.” Following a hearing involving the county and the State Board of Public Defense (“the Board”) to determine responsibility for the costs of representation, the district court vacated the order for private counsel and ordered the State Public Defender’s office or the District Public Defender’s office either to provide an attorney to represent Randolph or to pay an appointed counsel’s reasonable fees. The Board then appealed.
The supreme court’s first question was whether the district court erred in appointing a public defender to represent Randolph on appeal. The court noted that the Morris right of a first review by post conviction proceeding includes a right to a first review by direct appeal, which Randolph was seeking. Citing J.B., the court also noted the holding from Morris that where there is a constitutional right to counsel and no statutory right to a public defender, the district court may exercise its authority to appoint private counsel.
Minnesota Statute section 611.18 says in part that “[i]f it appears to a court that a person requesting the appointment of counsel satisfies the requirements of this chapter, the court shall order the appropriate public defender to represent the person at all further stages of the proceeding through appeal, if any.” The county argued—and the district court had agreed—that section 611.18 requires the district court to appoint a public defender to represent an eligible misdemeanant through all stages of his proceeding, including appeal. The court rejected this argument, however, finding that when section 611.18 is read in context with the rest of section 611, as it must be, it implies that misdemeanor appellants like Randolph are not entitled to public defender representation.
Section 611.14 delineates those persons who have a right to public defender representation. That class includes:
(1) a person charged with a felony, gross misdemeanor, or misdemeanor . . .;
(2) a person appealing from a conviction of a felony or gross misdemeanor, or a person convicted of a felony or gross misdemeanor, who is pursuing a postconviction proceeding and who has not already had a direct appeal of the conviction.
The court noted its earlier reliance on this section in the CHIPS cases, in determining which classes of people are entitled to representation by the public defender and focused on (2), which applies to appellants. Because that clause refers only to felony and gross misdemeanor appellants, the court inferred, based on the principle that “expressio unius est exclusio alterius” (“the expression of one thing is the exclusion of another”), that misdemeanor appellants do not have a right to public defender representation.
As for section 611.18—“if . . . a person requesting the appointment of counsel satisfies the requirements of this chapter, the court shall order the appropriate public defender to represent the person”—the court stated that because misdemeanor defendants do not satisfy the requirements of section 611, there is no “appropriate” public defender to represent him. Moreover, section 611.18 also states that:
For a person appealing from a conviction, or a person pursuing a postconviction proceeding and who has not already had a direct appeal of the conviction, . . . the state public defender shall be appointed. For a person covered by 611.14, clause (1), a district public defender shall be appointed to represent that person.
That is, an indigent defendant is to have a district public defender at trial but a state public defender on appeal. That refutes the argument that the same district public defender is to represent a defendant through all stages of the proceeding. Thus, again, there is no “appropriate” public defender for misdemeanor appellants.
From these arguments, the court concluded that there is no provision, in section 611 or elsewhere, for public defender representation for misdemeanor appellants. The court consequently reversed the order requiring public defender representation for Randolph and reinstated the order appointing private counsel for his appeal.
The reinstatement of private counsel raised the crucial, difficult issue: how is private counsel for misdemeanant appellants to be funded? The county and the Board each argued that the other is responsible for the costs, but both arguments left the court unpersuaded. J.B. had held that the Legislature intended for the Board to pay for representation only when the Legislature “specifically provided for state public defender representation.” But Randolph (unlike J.B.) involved no statutory right to public defender representation, and so the court found no basis to conclude that the Board is obligated to pay for counsel.
But neither is the county obligated to pay. The Board’s argument that the county is obligated to pay relied on section 611.27 subdivision 5, stating that “all other public defense related costs remain the responsibility of the counties.” However, subdivision 5 concerns services provided by the district public defender. More fully:
The board of public defense may only fund those items and services in district public defender budgets which were included in the original budgets of district public defender offices as of January 1, 1990. All other public defense related costs remain the responsibility of the counties unless the state specifically appropriates for these. The cost of additional state funding of these items and services must be offset by reduction in local aids in the same manner as the original state takeover.
The district public defender does not represent indigent defendants on appeal; such defendants have no statutory right to a district public defender. Therefore subdivision 5 is irrelevant to the issue of funding for private appellate counsel.
If neither the Board nor the county is responsible for funding misdemeanants’ private appellate counsel, and if the Legislature has not heeded Morris’s call for a solution, how is the Morris right to be vindicated? In State v. Dahlgren, the court held that “[w]hile the courts may have inherent power to appoint counsel to represent an indigent person on appeal, we have no power to appropriate money to compensate such counsel. Only the legislature can do that.” However, a later case held that the court does have inherent authority to order the expenditure of public funds when “necessary to the performance of the judicial function as contemplated in our state constitution,” and that such power “comprehends all authority necessary to preserve and improve the fundamental judicial function of deciding cases.” The Randolph court, however, chose not to resolve the tension between these two cases, opting for a different solution: “The State . . . should arrange for adequate compensation necessary to fulfill Randolph’s constitutional right to counsel. If the State determines not to provide compensation, Randolph’s right to counsel will have been violated, and his conviction must be vacated.”
This result is limited to the case at hand and is not intended to be precedential. Rather, the opinion is plainly intended as a warning to the Legislature: “In the absence of legislative action to adequately implement the right to appellate counsel in misdemeanor appeals, it is our responsibility to act” because “safeguarding the rights of criminal defendants is a historical and constitutional function of the judicial branch.” “[I]f the State has not adopted a policy to provide for the fulfillment of the right to counsel recognized in Morris, and if competent [pro bono] private counsel are not available to satisfy the right, the judiciary will have to fashion a more permanent remedy.
The opinion suggests a future in which the court routinely dismisses appealed misdemeanor charges or, alternatively, makes major appropriations decisions on its own, if the Legislature does not resolve the funding problem. To avoid those outcomes in Rudolph, the State was given ninety days to pay the reasonable fees incurred by Randolph’s appointed counsel, and if the State did not comply, all charges against the appellant would be vacated and the charges dismissed.
It is to be hoped that the Legislature complies with Randolph’s order and takes advantage of this opportunity to re-evaluate the state of indigent defense funding. Dismissing charges is obviously undesirable, but the county-based system that exists for funding some rights to counsel is also inadequate and deserving of reconsideration. The obligations of the counties are determined without regard for their resources, which can be expected to result in hardship for the counties and poor representation for defendants, and counties naturally resist having to pay those costs. As the extent of litigation between states and counties over this issue suggests, this is not an ideal or even sustainable state of affairs.
County-funded systems of public defense have proven to give a lower quality of service than state-funded systems. Mississippi is an example. That state makes its counties responsible for funding their own public defender programs, and the results are evidently severely deficient. One study found that “[t]he lack of adequate resources for indigent defense services results in poor quality services and representation . . . there is no state-wide oversight of indigent defense, which leads to a hodgepodge, county-by-county approach to providing services . . . and every aspect of defense representation is compromised.” Another study of the state concluded that “indigent defense remained a vexing problem for the counties.” More generally, a commentator has recently noted “the epidemic tendency of states with county-based public defender systems to inadequately fund indigent services to the severe detriment” of their indigent citizens.
There are a number of reasons why a centralized, state-funded system of public defense could be expected to provide a higher quality of service. Most obviously, as the ABA has noted in endorsing state-wide funding systems, states simply have far greater resources than counties, and can allocate those resources in more efficient ways. The State can distribute funds according to the respective needs of the counties or, if there is a short-fall of funding, is best placed to prioritize the demands made on the public-defender system. A centralized state system also arguably allows for better oversight of allocation and spending, and avoids the seemingly endless confusion and litigation between different levels of government.
But a more fundamental argument against county funding of indigent defense is that it violates equal protection. In Morris the Minnesota Supreme Court affirmed its agreement with Douglas that “unconstitutional line[s] . . . between rich and poor” will not stand. Yet counties’ resources vary significantly, and therefore the quality of service an indigent person receives may well depend on where he or she lives. Geography increasingly separates the rich from the poor, and if geographical divisions are used as a basis for allocating legally mandated resources, those divisions may serve as a proxy for such unconstitutional lines.
Consider two Minnesota counties, Hennepin (Minneapolis) and Crow Wing, one of the parties in the CHIPS cases. The two counties have similar proportions of indigent citizens to serve: the poverty rate in Hennepin is 11.0%, and in Crow Wing 11.4%. Yet the two counties have greatly different levels of resources, as indicated by their respective average incomes and property values (which typically determine the level of funding for public defense). In Hennepin the median income is $62,000 and the average value of owner-occupied housing is $143,000. In Crow Wing the median income is $46,000 and the average value of owner-occupied housing is $107,000. It is implausible to think that Crow Wing can provide the same level of service for its indigent defendants as Hennepin can for its own. That suggests a possible equal protection challenge to county-based systems.
C. Equal Protection Challenges to Inequality
Justice Warren wrote that “[a] citizen . . . is no more nor no less so because he lives in the city or on the farm. This is the clear and strong command of our Constitution’s Equal Protection Clause.” He wrote those lines in a voting rights case which established the one person, one vote principle. To understand how a county-based system for providing indigent defense might be vulnerable to an equal protection challenge, it is useful to compare the similarly geography-based issues of voting and school districting. This comparison also allows us to ask not just whether equal protection arguments can be used to challenge county-based public defender systems, but also whether similar arguments can afford any protection to the poor as such.
General equal protection jurisprudence has been concerned with state legislation that has the intent or effect of creating “discrete and objectively identifiable classes,” using a classification that is “wholly arbitrary or capricious.” Such invidious classifications aside, states have discretion to enact laws that result in some degree of inequality. The U.S. Supreme Court “has never . . . held that wealth discrimination alone provides an adequate basis for invoking strict scrutiny.” However, indigency may be a suspect classification, if “indigency” is understood to refer to absolute, not relative, poverty.
A first threshold question in a general equal protection analysis, therefore, is whether “the poor” of a jurisdiction constitute a discrete and identifiable minority. This element of the analysis is apparently not strictly necessary (contrary to what first-year law students are told). A court confronted with economic discrimination could ignore this question and simply strike a law down as manifestly unjust. That was the approach of Bullock v. Carter, which invalidated a filing fee for candidates for state office. The Court granted that “[t]he disparity in voting power based on wealth cannot be described by reference to discrete and precisely defined segments of the community as is typical of inequities challenged under the Equal Protection Clause.” Nonetheless, the Court concluded that
[w]e would ignore reality were we not to recognize that this system falls with unequal weight on voters, as well as candidates, according to their economic status. . . . [For this reason,] and because this impact is related to the resources of the voters supporting a particular candidate, we conclude . . . that the laws must be ‘closely scrutinized’. . . .
The orthodox approach is represented by San Antonio Independent School District v. Rodriguez, which is notable for its detailed analysis of geographical discrimination. This school-funding case was a class-action suit brought by poor and minority residents of Texas school districts that had low property-tax bases and consequently, the residents alleged, inadequate schools. The U.S. Supreme Court ultimately rejected the residents’ discrimination claims and the lower court’s determinations that wealth is a suspect class and that education is a fundamental right.
The Supreme Court considered three possible targets of discrimination: the poor as defined by some absolute standard; the poor as defined by a relative standard; and those who, regardless of their personal income or wealth, reside in a relatively poor district. The Court rejected the first description of the targeted class as being under- and over-inclusive: it had not been shown that all residents of poorest districts were themselves poor, nor that no poor residents lived in rich districts. Rejecting the identification of the poor by a relative standard, the Court raised, but did not answer the questions of how strong a correlation would have to exist between income and quality of education to support a claim of discrimination, and of whether the poor thus identified could be sufficiently homogeneous and identifiable to constitute a suspect class. As for the third option, that residents of poor districts as such, regardless of their personal wealth, were the targets of discrimination, the Court again pointed to the diversity of a poor district. The residents of a given district do not form a cohesive, identifiable class, the Court wrote, but rather constitute “a large, diverse, and amorphous class, unified only by the common factor of residence in districts that happen to have less taxable wealth than other districts.”
The argument that districts or counties are too large and diverse to constitute discrete and insular minorities would have somewhat less bite, however, against a county-based indigent-defense system. Indigent defendants are already singled out from the general population as being criminal defendants and as being poor enough to qualify for appointed counsel. However, a challenge to a county-based system of defense would still have to show that such a system provides defendants in poor counties with a quality of representation sufficiently far below that provided to defendants in rich counties to constitute discrimination.
This brings us to the second criterion of an equal protection violation that the claimed deprivation of a benefit must be absolute rather than relative. As the Rodriguez Court recognized, when citing Griffin and Douglas, indigent criminal defendants are unable to pay for a desired benefit, and as a result “[sustain] an absolute deprivation of a meaningful opportunity to enjoy that benefit.” Thus although the criminal defendants in those cases did have legitimate equal protection claims, the families of children in poor school districts, the Rodriguez Court held, do not, because they were not denied any education whatsoever.
This is a difficulty for challenges to county-based systems of indigent defense: even if indigent defendants in poor counties receive a low quality of representation, whether measured by a relative or an absolute standard, they still receive some representation. The courts are likely to be unsympathetic to claims by indigent defendants in poor counties that they get a lower quality of representation than similar defendants in rich counties. As Justice Frankfurter said in Griffin:
A man of means may be able to afford the retention of an expensive, able counsel not within the reach of a poor man’s purse [or, he might have said, a poor county’s]. Those are contingencies of life which are hardly within the power, let alone the duty, of a State to correct or cushion.
In short, an equal protection challenge to county-based indigent defense is unlikely to clear the two hurdles of identifying a discrete class and demonstrating an absolute deprivation of a right.
But the foregoing discussion recalls the indications, noted above, that “the poor” are becoming an increasingly entrenched group. There is evidence that as inequality increases and social mobility declines, the poor increasingly exhibit the “traditional indicia” of suspectness: saddled with disadvantages, subjected to purposeful unequal treatment, or relegated to such a position of political powerlessness as to command extraordinary protection from the political process. That suggests that equal protection arguments on behalf of the poor might be able to pass at least the first hurdle of identifying a discrete target of discrimination.
Unfortunately, however, the current U.S. Supreme Court seems unsympathetic to attempts at reducing inequality. Consider the recent case of Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett. Here the Roberts Court struck down an election-funding scheme that provided additional public funds for a participating candidate if a privately funded opponent has funds exceeding the publicly funded candidate’s initial allotment. The Court’s opinion assumes the perspective of the privately funded candidate and, paradoxically, rejects the funding program as a limit on free speech, describing it as “a penalty” on privately funded candidates. How does such funding for an under-funded candidate burden speech? Apparently by reducing privately funded candidates’ advantage. More generally, the Court repeatedly stated, these burdens “cannot be justified by a desire to ‘level the playing field’.”
If the Court’s opposition to attempts to reduce inequality were to become a general judicial principle, the consequences for the poor could be serious. It would perhaps be useful to be reminded of Justice Holmes famous epigram from his dissent in Lochner that “a constitution is not intended to embody a particular economic theory.”
In a time of increasing inequality, the criminal justice system can push the poor into a downward spiral. As inequality grows, resources for indigent defense become more limited and sentences grow more punitive. Increased punishment further reduces the potential income of indigent people, the resulting increase in inequality may produce more crime, and so on. Morris’s broad conception of equal protection and its re-affirmation of the Douglas principle are welcome developments that have the potential to slow this spiral. However, that potential may go unrealized if the quality of a defendant’s representation is left to the discretion of a district court judge or to the resources of the county in which the defendant happens to live. The best solution would be an adequately funded statewide public defender system.
Even granted such a system, however, larger questions remain. Given economic trends, the poor seem increasingly to exhibit “the traditional indicia” of a suspect class. Meanwhile, our highest Court seems uninterested in equal protection arguments or, indeed, any remedy for inequality. Good ideas for addressing our most serious social problem are in short supply. Morris, at least, is a small victory for equality—if it is met with an adequate system of indigent defense.