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Thursday, October 7, 2004

Traffic defendants not always told
of their right to counsel

That thousands are waiving their right to a lawyer when facing jail time is “astounding,” said GSU’s Clark D. Cunningham.
Alison Church/Daily Report

A report from the Chief Justice’s Commission on Indigent Defense suggests it may be time to decriminalize many of Georgia’s traffic offenses, the penalties of which it characterizes as the harshest in the nation.



Greg Bluestein

A report from the Chief Justice’s Commission on Indigent Defense suggests it may be time to decriminalize many of Georgia’s traffic offenses, the penalties of which it characterizes as the harshest in the nation.

The commission’s report said that many Georgia courts had yet to adapt to Alabama v. Shelton, 535 U.S. 654, a 2002 U.S. Supreme Court ruling that found that a court may not impose a suspended or probated sentence that could lead to jail time unless a defendant is given the right to counsel.

A survey of 19 Georgia counties, including Fulton, DeKalb and Cobb, and a series of court observations by an independent consulting firm found wide variations in how courts ensure that traffic defendants are informed of their right to counsel.

Although the metro counties weren’t criticized specifically, the report found that courts statewide are inconsistent in applying the Shelton ruling in traffic cases.

According to the report, some prosecutors routinely communicated with defendants before they waived their right to counsel, and some judges didn’t offer defendants legal representation unless asked. Some judges presiding over traffic cases failed to tell defendants the risk of proceeding without a lawyer while others, the report says, denied defendants the right to counsel altogether.

“The fact that, theoretically, hundreds, thousands of people are waiving their right to a lawyer when they’re facing jail time is astonishing,” said Clark D. Cunningham, the Georgia State University law professor who authored the report.

The report calls Georgia’s traffic penalties “by far the harshest in the nation.” Under state law, first offenders can face up to a $1,000 fine and a year in prison for any moving violation. A handful of states limit punishment to up to six months in jail, and 33 states impose only fines for a person’s first speeding offense.

The report recognizes that jail time is seldom imposed on traffic offenders and functions primarily as leverage to ensure that violators pay their fines, but it expresses concern over the state’s stiff penalties.

“There seems to be no evidence that Georgia’s harsh approach to the punishment of traffic offenses is necessary for effective law enforcement,” the report says.

“These very, very heavy sentences function as a sledgehammer to get people to pay fines,” Cunningham said. “But the sledgehammer only crushes people who don’t pay the fines.”

Reform Recommendations

The commission recommends that courts institute rules to guarantee that defendants know they have the right to counsel.

The commission suggests that courts ask if a defendant has a lawyer before an arraignment. The report also says courts should prohibit contact between defendants and prosecutors and not accept pleas before the accused have had an opportunity to retain or waive the right to counsel.

To eliminate any ambiguity, the report urges court rules to make it clear that the right to counsel does not depend on a written request.

If the courts can’t follow these procedures, the report recommends that they lose the power to impose jail sentences for traffic offenses.

It also suggests that many traffic violations should be treated as civil infractions or that courts should use pretrial diversion programs to handle such defendants.

Possible Fiscal Burden

B. Michael Mears, the director of the Georgia Public Defender Standards Council, said the courts should decide either to provide legal representation or to decriminalize the violations.

“Representation has to be provided if the penalties aren’t decriminalized,” Mears said. Counties can provide the services on their own or contract with the public defender offices. “But they’ve got to provide it one way or another,” he said.

Providing representation could be a fiscal burden for local court systems. The PD council’s $44.7 million budget currently is allotted to cover only the superior and juvenile courts. Expanding statewide service to lower courts, such as probate, state and traffic courts, would require the General Assembly to double the PD council’s budget and could cost as much as $100 million a year, Mears estimated.

‘A Serious Problem’

Several solicitors and judges agreed that the system needs reform.

“I don’t have a whole lot of doubt that there are a lot of courts who have problems and aren’t doing what they need to do,” said East Point Municipal Court Judge Glen Edward Ashman. “From everything that I’m reading, there are obviously courts where it’s become a serious problem.”

Each court, though, has to resolve how it treats traffic violations, said Joseph J. Drolet, solicitor general of the City Court of Atlanta.

“Courts know [the violations are] not that serious generally, so they don’t treat them seriously. But legally, you have to treat them seriously. If you can get 12 months in jail, then you should certainly be entitled to a lawyer. The question is, are the courts serious about putting people in prison for 12 months.”

Traffic Court Gridlock

Some prosecutors wondered if changes to procedures would gridlock traffic courts.

In Cobb, more than 250 accused speeders, stop-sign violators and improper lane changers file into four traffic courtrooms on an average day. That number easily can double on a busy day, said Barry E. Morgan, the county’s solicitor general.

Even to ask judges to warn defendants individually of the danger of not having counsel “would slow the court process down tremendously,” Morgan said.

The effectiveness of any reforms narrows down to whether the changes can keep the flow of traffic courts moving, Drolet said.

“If you have to go through a litany with each defendant, that court cannot handle the caseload it normally handles,” he said. “A lot of courts have wrestled with that issue. Do we treat them like felonies or just run them through fast?”

Regardless of how courts answer that question, Cunningham said they should treat the Shelton ruling not as a burden, but as an opportunity to help indigent defendants.

“They’re in jail because they’re poor. They’re in jail before the case because they couldn’t pay bond. They’re in jail after the case because they couldn’t pay their fine,” he said. “If good indigent representation is found, they won’t be returning to jail.”

Published in the Daily Report on October 7, 2004