State Constitutional Right to Counsel

Most people are aware that persons accused of a crime have a federal constitutional right to appointed counsel if they cannot afford to hire a lawyer to defend them. However, most people are not aware that as a federal constitutional matter, that right extends only to those crimes for which a sentence of incarceration is actually imposed. Counsel need not be provided even though incarceration is a punishment authorized by statute, and need not be provided if a fine is imposed, even if it is very high.

As in so many other matters, however, our state Supreme Court has taken a different view. The New Jersey Supreme Court requires, as a matter of "fundamental fairness," that counsel be appointed whenever an indigent defendant faces imprisonment or "other consequence of magnitude." The lower courts have interpreted this language as requiring counsel to be appointed if a defendant is facing loss of his or her driver's license, or a fine of $1,800. The ACLU-NJ is now seeking to extend this guarantee of counsel to persons facing eviction as a result of being convicted of a disorderly persons offense.

Our client, Ms. Coley, was tried and convicted of possession of drug paraphernalia in the Passaic municipal court, after the judge refused her request for appointment of counsel. In addition to the $1,700 fine imposed, she faces the loss of her apartment under a recently enacted state statute which makes conviction of certain drug related offenses grounds for eviction.

Cooperating attorney Brian Neary represents Ms. Coley in a motion to set aside her conviction on the grounds that the loss of one's home is a sufficiently serious consequence to require appointment of counsel. Cooperating attorney Donald Romaniello represents her in the eviction action, and has moved to stay the proceedings pending the outcome of the motion to set aside the conviction.

This case takes on added importance in light of the restrictions imposed on legal services programs by Congress, which prevent them from representing persons convicted of drug offenses. Unless counsel is appointed in the criminal cases, people like Ms. Coley may face criminal convictions, fines, and the loss of their apartments without ever having the benefit of a lawyer's advice or assistance.

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