Traffic defendants not always told
of their right to counsel
are waiving their right to a lawyer when facing jail
time is “astounding,” said GSU’s Clark D. Cunningham. Alison Church/Daily Report
By 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.
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
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.”
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
If the courts can’t follow these procedures, the report recommends
that they lose the power to impose jail sentences for traffic
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
“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
Traffic Court Gridlock
Some prosecutors wondered if changes to procedures would gridlock
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,”
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