by Joseph Sobecki, Attorney and Guest Contributor
This article provides an analysis of Sixth Amendment right to counsel misdemeanor non-felony jurisprudence in relationship to jury sentencing by exploring three standards: Actual Confinement, Authorized Confinement, and Possible Confinement. The Sixth Amendment grants criminal defendants the right to have counsel present at all critical stages. However, this right to counsel does not attach to every criminal proceeding. Part II of this article explains the Supreme Court’s Actual Confinement standard for triggering the right to counsel in misdemeanor cases, and why jury sentencing is problematic. Part III explores Justice Brennan’s proposed Authorized Confinement standard and Virginia’s heightened Possible Confinement standard—analyzing each within the confines of Virginia’s criminal procedure framework. Finally, this article summarizes the likely impact of jury sentencing on a defendant’s right to counsel in misdemeanor cases.
II. The Supreme Court Standard: Actual Confinement
In Argersinger v. Hamlin, the Supreme Court adopted “Actual Confinement” as the standard to determine when the Sixth Amendment right to counsel attaches to misdemeanor charges.1Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (“We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”). A pillar of the holding in Argersinger is that “every judge will know when the trial of a misdemeanor starts that no imprisonment may be imposed, even though local law permits it, unless the accused is represented by counsel.”2Id. at 40. In Scott v. Illinois, the Court clarified that any misdemeanor resulting in jail time triggers the Sixth Amendment right to counsel, but also that this right does not extend to misdemeanor cases where confinement is possible, but ultimately not levied as a sentence.3Scott v. Illinois, 440 U.S. 367, 373-74 (1979).
A reading of Argersinger and Scott together leads to a state judge playing a large role in protecting the right to counsel and determining if it applies in a misdemeanor case. A state judge must appoint counsel for an indigent defendant at the start of a case if any term of confinement will result from a petty charge. Justice Powell’s concurrence in Scott criticized the holding because a judge must make this determination before anything is known about the case and without examination of any evidence. Notwithstanding the danger of promoting assembly line justice, judges are likely able to accurately gauge whether confinement is at issue based on the charge. However, the assumption underlying Argersinger and Scott is that the judge is the gatekeeper of the sentence.
III. Virginia Case Study: The Quandary of Jury Sentencing and Actual Confinement
If a jury is responsible for sentencing, how can a judge determine at the onset of a case whether confinement will be at issue? Unlike a judge with a public sentencing history and experience with hundreds of similar charges, a jury has no memory or experience.4See Nancy J. King & Rosevelt L. Noble, Felony Jury Sentencing in Practice: A Three-State Study, 57 Vand. L. Rev. 885, 899 (2004). A jury sentence can be a wildcard. Yet, when a jury is responsible for sentencing, a judge must still determine whether to appoint counsel for an indigent defendant charged with a misdemeanor carrying the possibility of confinement—at the onset of the case.
Less than ten states permit jury involvement in sentencing.5Id. at 886; Mitchell E. McCloy, Blind Justice: Virginia’s Jury Sentencing Scheme and Impermissible Burdens on a Defendant’s Right to a Jury Trial, 78 Wash. & Lee L. Rev. 519, 525 (2022). This article analyzes Virginia because under Virginia’s criminal procedure law, a case begins before a judge knows for certain whether the jury will be responsible for sentencing, and jury sentencing applies to misdemeanor cases.6Va. Code § 19.2-295(A) (2020). Virginia utilized mandatory jury sentencing prior to July 1, 2021. John Hood, Virginia to See New Option for Jury Sentencing Beginning July 1, WHSV (June 30, 2021, 6:37 PM), https://www.whsv.com/2021/06/30/virginia-see-new-option-jury-sentencing-beginning-july-1/.
Virginia defendants convicted of a misdemeanor with possible jail sentences are sentenced by a judge—unless the defendant files a motion for sentencing by jury at least thirty days before trial.7Va. Code § 19.2-295(A) (2020). Therefore, a judge will not know whether a defendant intends to seek a jury sentence at the onset of a case. Argersinger assumes that a judge will know whether confinement is at issue at the onset of a case—a luxury that a Virginia judge does not have.
A. The Authorized Confinement Standard
Virginia’s “Possible Confinement” standard is different from the “Authorized Confinement” standard as advocated by Justices Brennan, Marshall, and Stevens in Brennan’s Scott dissent.8Scott v. Illinois, 440 U.S. 367, 382-84 (1979) (Brennan, J., dissenting). The Authorized Confinement standard triggers the right to counsel the moment a misdemeanor permits a sentence of confinement. Confinement cannot occur when a judge has no intention of sentencing an indigent defendant convicted of a misdemeanor to confinement. However, a defendant in Virginia can remove the sentencing decision from a judge and give it to the jury—well after numerous critical stages of a criminal proceeding.
B. The Possible Confinement Standard
Virginia requires counsel be provided to indigent defendants if the offense “may be punishable” by confinement.9Va. Code § 19.2-159(A) (2021). A better term for Virginia’s standard is Possible Confinement, and it is a higher standard than Actual Confinement. The paradox is that under Possible Confinement, the right to counsel doesn’t necessarily apply if the judge decides that confinement will not occur—which is a determination that a judge can make as the sentencing authority. However, a defendant who elects a sentence by jury deprives a judge of discretion to ensure that no confinement occurs—since a defendant can elect for jury sentencing as late as thirty days before trial.
A judge is forced to choose between the economic cost of appointing counsel for every misdemeanor offense with the possibility of confinement or risking an unreasonable sentence of confinement from a jury. Alternatives include appointing counsel only after an indigent defendant elects for a sentence by jury, or modifying any sentence of confinement from a jury.10Id. § 19.2-303.
If counsel is appointed after an indigent defendant elects for a sentence by a jury, it could mean counsel is appointed only thirty days before the start of trial—which could be problematic under the Sixth Amendment right to counsel.11Hamilton v. Alabama, 368 U.S. 52 (1961) (holding that arraignment is a critical stage in a criminal proceeding).
On the other hand, a misdemeanor offense could not be punishable by confinement if the judge intends to modify any sentence of confinement levied by a jury. Although, a judge who reaches this stage must inevitably determine whether modification was initially intended at the start of the case, or merely applied after jury sentencing. It is unclear whether a judicially modified jury sentence would satisfy Possible Confinement, triggering the right to counsel, because it is the discretionary intent of the judge that makes confinement impossible. Until the judge has the intent to modify a sentence, an indigent defendant charged with a misdemeanor could theoretically face confinement, in violation of Virginia’s Possible Confinement standard. At the same time, it may not be reasonable at the onset of a case for a judge to anticipate whether a defendant will elect to a sentence by jury a mere thirty days before trial.
While the Possible Confinement standard does not necessarily trigger the right to counsel in every misdemeanor case, it is clear that jury sentencing impairs the ability of a judge to control whether a misdemeanor results in confinement. Less control over sentencing likely leads to the right to counsel attaching to more misdemeanors.
For example, if Virginia repealed the ability of a judge to modify and reduce a jury sentence, counsel would need to be appointed for every misdemeanor offense because a judge could lose the ability to prevent confinement if the defendant elects for a jury sentence at least thirty days before trial. To avoid the inevitable violation of the Sixth Amendment, counsel would need to be appointed in every misdemeanor case where the defendant is indigent because confinement would be a conceivable outcome.
IV. Final Thoughts
Any state that tasks a jury with ultimate control over sentencing must appoint counsel to indigent defendants in every misdemeanor case where confinement is an option for the sentencing jury. This must occur to avoid a violation of the right to counsel as enumerated in Argersinger and Scott. Any state legislature that finds itself in this theoretical situation may find it economical to remove the possibility of confinement for all but the most serious misdemeanors. Furthermore, regardless of a judge’s discretionary authority to modify a jury imposed sentence, it appears that jury sentencing (regardless of other effects12King & Noble, supra note 4, at 962 (finding that jury sentencing discourages jury trials).) likely expands the right to counsel for indigent defendants charged with misdemeanors that could result in confinement.
- 1Argersinger v. Hamlin, 407 U.S. 25, 37 (1972) (“We hold, therefore, that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial.”).
- 2Id. at 40.
- 3Scott v. Illinois, 440 U.S. 367, 373-74 (1979).
- 4See Nancy J. King & Rosevelt L. Noble, Felony Jury Sentencing in Practice: A Three-State Study, 57 Vand. L. Rev. 885, 899 (2004).
- 5Id. at 886; Mitchell E. McCloy, Blind Justice: Virginia’s Jury Sentencing Scheme and Impermissible Burdens on a Defendant’s Right to a Jury Trial, 78 Wash. & Lee L. Rev. 519, 525 (2022).
- 6Va. Code § 19.2-295(A) (2020). Virginia utilized mandatory jury sentencing prior to July 1, 2021. John Hood, Virginia to See New Option for Jury Sentencing Beginning July 1, WHSV (June 30, 2021, 6:37 PM), https://www.whsv.com/2021/06/30/virginia-see-new-option-jury-sentencing-beginning-july-1/.
- 7Va. Code § 19.2-295(A) (2020).
- 8Scott v. Illinois, 440 U.S. 367, 382-84 (1979) (Brennan, J., dissenting).
- 9Va. Code § 19.2-159(A) (2021).
- 10Id. § 19.2-303.
- 11Hamilton v. Alabama, 368 U.S. 52 (1961) (holding that arraignment is a critical stage in a criminal proceeding).
- 12King & Noble, supra note 4, at 962 (finding that jury sentencing discourages jury trials).