Pleading the Sixth: Mississippi regularly denies felony defendants the right to counsel during the critical stage between arrest or preliminary hearing and arraignment following grand jury indictment. This practice is pervasive, resulting from systemic neglect of indigent defense at the state level. Until Mississippi provides state-level oversight to guarantee that local governments are both capable of and in fact providing constitutionally effective representation, injustices such as the “dead zone” will continue to plague the state.
The Fifth Circuit Court of Appeals recently heard oral arguments in Russell v. Denmark, a case in which an indigent defendant was convicted and sentenced to two concurrent life sentences in a Hinds County, Mississippi state court after being denied access to a lawyer during a 14-month period of pretrial incarceration. As the lower federal court explained, Mr. Russell was “completely abandoned” by his public defender, who never visited him or took any steps to investigate his case. This, the court held, was a violation of Mr. Russell’s Sixth Amendment right to counsel. Far from an aberration, what happened to Mr. Russell resulted from a “breakdown in the public defender system,” and it is but one example of the systemic deprivation of the right to counsel that occurs every day in local trial courts throughout Mississippi.
For indigent felony defendants in Mississippi, the critical months following arrest have been reduced to a “dead zone”
In 2018, 6AC published a report, The Right to Counsel in Mississippi, which exposed how, as a result of systemic failures in the state’s criminal system, many poor people charged with felonies fall into a “dead zone”: a months-long (and sometimes years-long) period during which indigent defendants languish in jail without ever speaking to a lawyer.
This “dead zone” spans from an accused person’s arrest all the way until their arraignment following grand jury indictment. This is because in Mississippi, all felony prosecutions must go through the grand jury indictment process, and it is only after grand jury indictment that a lawyer is appointed to work on the defendant’s case in any meaningful way. But in Mississippi, there is no time limit between when someone is arrested and when they are indicted. And as 6AC’s report revealed, in some counties, the prosecutor makes a grand jury presentation only twice a year – meaning that some felony defendants must wait until at least six months after arrest to be indicted, arraigned, and given meaningful access to an attorney.
Mississippi’s practice of denying counsel to indigent defendants during this critical pretrial stage is anathema to the Sixth Amendment. The U.S. Supreme Court describes this time as “perhaps the most critical period…when consultation, thoroughgoing investigation and preparation” are “vitally important.” Without an attorney, defendants’ cases go uninvestigated. Exculpatory evidence is destroyed, witnesses become unreachable, and crime scenes deteriorate. The accused lose jobs, housing, healthcare, and the ability to support their families. And, as a recent Mississippi Today article highlighted, the denial of counsel leads to specific problems for people with mental illnesses: the state’s own Department of Mental Health found that defendants spend an average of 555 days in jail before a judge orders a competency evaluation, in part because it is typically defense attorneys who raise competency issues, and they are absent during the critical early months of a case. All the while, Mississippi taxpayers bear the cost – an estimated $90 million each year – of jailing people who are presumed innocent.
The roots of the “dead zone” are systemic and pervasive, and any meaningful response must include increased state oversight
It has now been five years since 6AC’s report, and Mississippi’s “dead zone” unfortunately remains alive and well. What’s more, this denial of counsel during the critical pretrial period is merely the tip of the iceberg. When a felony lawyer is finally appointed, the attorney is often too under-resourced, overworked, and financially conflicted to provide constitutionally effective assistance.
The problems with the provision of indigent defense services in Mississippi are systemic and pervasive, and any meaningful response must include increased state oversight. This is not simply a matter of opinion – it is a constitutional requirement. Ensuring that every indigent accused person is given their constitutional right to counsel is a state obligation. The fact that Mississippi is one of only a handful of states with no statewide indigent defense system does not relieve it of that duty. When a state passes its constitutional responsibility on to local governments, the state must guarantee that the local governments are not only capable of providing adequate representation, but that they are in fact doing so. With the sixtieth anniversary of Gideon v. Wainwright looming, it is time for the state to act. Mississippi’s own criminal justice policymakers are in the best position to develop a solution that guarantees that every indigent defendant in the state is given their right to effective assistance of counsel and to ensure that the “dead zone” becomes a relic of the past.