In 1966, the Supreme Court issued its seminal ruling in Miranda v. Arizona, 384 U.S. 436 (1966). We are familiar with the “Miranda warning” that comes when someone gets arrested (i.e. “You have the right to remain silent. Anything you say can and will be used against you…”). Those rights include the right to remain silent and the right to an attorney. Free of charge. But there is a minority of states, including South Dakota, where that “right” comes with a price tag. Without addressing my problems with that (and I think there are many), I think it is worth noting the inherent contradictions between South Dakota’s “pay to play” criminal justice system and the way the Supreme Court saw things in Miranda.
In Miranda, the Court held that “the Federal Bureau of Investigation has compiled an exemplary record of effective law enforcement while advising any suspect or arrested person, at the outset of an interview, that he is not required to make a statement, that any statement may be used against him in court, that the individual may obtain the services of an attorney of his own choice and . . . that he has a right to free counsel if he is unable to pay.” 384 U.S. 436, 481 (1966) (emphasis added). That “free” part was based on the Criminal Justice Act of 1964, which is codified at 18 U.S.C. Section 3006A. Here’s the gist, folks– if you are suspected of a crime, arrested for a crime, and need legal representation for that case, you should get it free of charge if you can’t afford it because it is your constitutional Sixth Amendment right to the effective assistance of counsel, thanks to Gideon v. Wainright, 372 U.S. 335 (1963).
But here’s the rub– if you are in South Dakota, and some other states, and you need to exercise your Sixth Amendment right, you get a bill at the end of your case. That doesn’t sound right to me. In fact, it sounds un-American. So the right is different in South Dakota. If the state cops were telling the truth, they would have to tell suspects or defendants “you have the right to an attorney if you can afford one. If you can’t afford one, we’ll slap you with a bill at the end of your case and you’ll have to pay it or you’ll go to jail.” But they don’t tell them that. Because they want suspects to talk. They want to use the “Reid Method” to coerce confessions. Simply put, they don’t want lawyers there because lawyers would tell anyone to not speak to law enforcement without an attorney present to help you. If the cops were honest and did tell you that you’ll get a bill if you ask for a lawyer, it could be construed (in my mind) as coercive– telling suspects that it will literally cost them to get legal assistance to help them.
I believe this inherent contradiction can be challenged in court. If you have a case where the Miranda advisal simply told the suspect or defendant that they had a right to an attorney (as is common in states like South Dakota), without telling them that they will have to pay, then you (or your attorney) should challenge the constitutionality of that advisal. In other words, there may be a legal remedy to suppress or exclude any statements made pursuant to one of these faulty advisals. After all, we are not the state legislature, and the state legislature is not always kind and thoughtful of criminal defendants. So perhaps if some of the statements start being thrown out of court, state law enforcement and/or the legislature may be more inclined to take a second look at whether or not it makes sense to slap bills on indigent criminal defendants who cannot pay them.