The Colorado Counsel Conundrum: Plea Bargaining, Misdemeanors, and the Right to Counsel

Abstract:     
Colorado’s procedures for handling misdemeanor prosecutions raise novel questions of Sixth Amendment law that have not been squarely addressed by state or federal courts. At the center of Colorado’s counsel conundrum is a statute, Colorado Revised Statute § 16-7-301, which requires the prosecution to negotiate plea deals with a person charged with a misdemeanor before the defendant has an opportunity to meet with an attorney.

Colorado’s pre-counsel plea bargaining system presents a trio of difficult Sixth Amendment questions, namely:

(1) At what point does the attachment of the right to counsel occur in Colorado (under Rothgery v. Gillespie County;

(2) Does the negotiation and entry of an un-counseled misdemeanor plea constitute a critical stage for which appointment and presence of counsel is required (under, for example, United States v. Wade); and

(3) Do sentences of time served or home arrest constitute “actual incarceration” (under the test announced in Scott v. Illinois)?

Colorado’s system for prosecuting misdemeanor offenses presents a constitutional conundrum that has important consequences for misdemeanor defendants, that is tantalizing for academics, and that is desperately in need of judicial review. This Article is designed for all three audiences. The direct constitutional analysis of Colorado’s provisions is designed to serve as a guidepost for judges and litigators. Likewise, the thorough accounting of the gaps in the academy’s collective knowledge about Sixth Amendment doctrine will hopefully spur additional empirical, historical, and doctrinal scholarship regarding the right to counsel in misdemeanor cases.

Number of Pages in PDF File: 42

Accepted Paper Series