The American Civil Liberties Union filed a class action complaint in Mississippi today on behalf of an estimated 50 prisoners who have been languishing for months in a Scott County jail without access to a lawyer and without being indicted for a crime.
The ACLU asserts the class of plaintiffs may be even larger; this is just one county in a state rife with right-to-counsel problems.
One man, Joshua Bassett, has been in jail for more than eight months after being arrested for grand larceny and meth possession. He has not been indicted and, though he is poor and entitled to an attorney, he has never been given one.
Another plaintiff, Octavious Burks, has been sitting in jail there for 10 months without being indicted. He is also entitled to a court-appointed attorney but has never spoken with one. He was arrested in November 2013 for attempted armed robbery, weapons possession, disorderly conduct and possession of paraphernalia. Without a lawyer present, a judge set bail at $30,000—too high for Burks to pay—and Burks has been trying to talk to a lawyer ever since.
The Scott County prisoners are caught in a Catch-22.
The law—based on a 1963 U.S. Supreme Court decision, Gideon v. Wainwright—says they are entitled to a lawyer to represent them. But without a lawyer, they have no way of forcing the local courts to take notice. The law also says that people who are arrested must be formally indicted and that they have a right to a speedy trial—but the Mississippi judges in Scott County and the 8th Circuit Court District won’t give the prisoners attorneys to represent them until they are indicted.
And this is where it gets truly strange. In this, and other parts of rural Mississippi, judges only convene grand juries—the group that hands down indictments—three times a year. That means someone can sit in jail for four months before learning whether or not he has been indicted for a crime. If the district attorney isn’t ready to present a case to the grand jury because say, he needs more time to investigate, that person can sit in jail even longer—as Burks and Bassett have.
Why the lag in appointing a public defender? “I can only imagine it’s a fiscal reason,” says Mississippi state public defender Leslie Lee, explaining that the county likely saves money by not paying a public defender during that long lag period between arrest and indictment.
She worries about the scope of the problem: “The scary thing is, we don’t know how many people are out there sitting in jail like that. We have no statewide public defender system, no accountability or way to check if these defendants have attorneys.”
The ACLU’s Brandon Buskey says he has watched court proceedings in a number of Mississippi counties and has discovered that Scott County is not unique. “While the confluence of factors is present there—no real bail hearing, denial of counsel, failure to indict in a timely manner—all of those factors are present in some way throughout Mississippi.”
The idea that a person could be sitting in jail for nearly a year without being indicted shocks the sensibilities of some Americans, but Buskey explains that nationally, many states have this wiggle room on the books. Fourteen states require formal filing of charges within one month of arrest, but 11 states give up to three months and seven states give three to six months. The rest of the states have no statute to govern this.
As for having an attorney, yes, the U.S. Supreme Court ruled in 1963 that defendants have a right to one but the debate about just when the right-to-counsel “attaches” continues to evolve. While the U.S. Supreme Court ruled in a 2008 case, Rothgery v Gillespie, that the accused are entitled to an attorney at every “critical stage” of the process, it did not clearly define what constituted a “critical stage.”
Most places have interpreted this to mean at the initial bail hearing. But not Mississippi.
“In a state like Mississippi where not having any representation at the initial hearing means you could be in jail without talking to an attorney for months, a bail hearing is a ‘critical stage,’” Buskey insists.
Not only have studies shown that the legal outcomes for those who are jailed as compared to those released on their own recognizance are far worse, but defendants are at a further disadvantage as they wait for an attorney to start working their case. Prosecutors are investigating the cases right away, before the trails get cold or witnesses forget details. “But you can’t start investigating a case if you are in jail and no one is representing you,” says Lee.
In rural Mississippi and indeed, in many rural areas of the country, including upstate New York, these initial hearings often take place before locally elected judges that are not even lawyers.
And, in a twist that is so counter-intuitive most states have stepped away from the practice, the judges in Scott County handpick who will be the public defender in each case. In essence, the public defender’s boss is not person he represents but the judge he argues before, the one who decides whether or not he’ll hire him next time around. “That sets up some problematic conflicts of interests,” Buskey says dryly.
Of course, that’s probably a minor concern for Octavious Burks who can’t get a lawyer of any stripe.
This is the third time he’s been arrested in Scott County and found himself sitting in jail for months without an attorney or an indictment. Once, he was arrested on suspicion of aggravated assault and disturbing the peace. It took 16 months for him to be formally indicted. Another time he sat in the Scott County jail for a year for “possession of firearm by a felon” before the sheriff finally released him on his own recognizance without a hearing. “All told, Mr. Burks has spent over three years in the Scott County jail since August 30, 2009, on the three separate charges,” the complaint states. “He has only been indicted once, he has never been to trial, and he has never been convicted.”
Buskey is blunt: “The process here really becomes a part of the punishment.”
As for Burks, these charges hang over his head.
“They can threaten him with these open cases and arrest at their caprice,” says Buskey. “It’s a pernicious and toxic system.”