« Rounding up a handful of notable weekend reads | Main | "The Price of Uncontested Prosecutor Elections: An Empirical Perspective" »

February 12, 2024

Notable new reporting on how "free" public defenders often come with a fee

The Marshall Project has this interesting new feature story headlined "If You Can’t Afford an Attorney, One Will Be Appointed. And You May Get a Huge Bill."  I recommend the full piece, and here are excerpts:

On television and in the movies, police officers read people their Miranda rights and tell them they will be provided a lawyer if they cannot afford one.  But in reality, legal representation is rarely free.  The Supreme Court has found the Constitution guarantees the right to counsel but allows states, in most cases, to try to recoup the cost.  More than 40 do so, according to a 2022 report by the National Legal Aid and Defender Association.

Iowa takes these efforts to the extremes, an investigation by The Marshall Project found. Not only does Iowa impose some of the highest fees in the nation — affecting tens of thousands of people each year — it also charges poor people for legal aid even if they are acquitted or the cases against them are dropped.  The practice is “definitely an outlier,” said Lisa Foster, co-executive director of the Fines and Fees Justice Center, an advocacy organization that tracks court debts....

Sixty years after Gideon v. Wainwright, the Supreme Court’s landmark ruling guaranteeing the right to counsel, the systems that provide poor people with lawyers in criminal courts are crumbling.  Public defenders flounder under impossible caseloads.  Private lawyers don’t want to take low-paying court appointments. Poor people languish in crowded jails or take plea deals to avoid incarceration.  Problems with public defense have become so dire that the U.S. Department of Justice has been hosting listening sessions across the country about problems with access to lawyers.

But there is also a less-known issue: So-called “free” lawyers aren’t free.  This summer, the American Bar Association released guidelines recommending that poor people shouldn't have to pay for a lawyer in criminal cases.  But in Dothan, Alabama, for example, people charged with Class C and D felonies, which commonly include low-level drug charges, must pay a flat fee of $2,000.  In rural Anderson County, in East Texas, people are charged $750 to plead out to a third-degree felony.  If they choose to go to trial, they must pay $750 a day for legal counsel.

February 12, 2024 at 10:40 AM | Permalink


It seems like most of these attempts to charge indigent defendants for public defenders must be unConstitutional, if Gideon v. Wainwright really means what it says. It's an obscene system, even here in Kentucky, where the Courts can impose some fee upon defendants who have some financial ability to pay the fees, but they rarely do so. Paying for indigent legal defense is a large financial burden on most states, but the Constitution would seem to require it. In Georgia, where I practiced for 13 years, the finances got so stretched that a homicide defendant once sat in jail for 2 years after being arrested and charged, without the Court appointing him counsel. Once counsel was finally appointed, he moved to dismiss the homicide charge, on the grounds that the defendant's Fifth and Sixth Amendment rights had been violated, and counsel could no longer properly investigate the case or seek witnesses two years after the crime and arrest. The legitimacy of the criminal justice system is at stake here. I frequently see people plead guilty to crimes they may have good defenses for, just because they cannot post bond and get out of jail, to save their jobs, cars, and apartments. Kentucky's Constitution has very strong requirements about the Court setting a reasonable bond for all defendants, except in capital cases (death penalty) where the proof is great. Yet, the public defenders rarely have time to appeal bond decisions from District Court to Circuit Court or the Court of Appeals, the enforce the requirements of Sections 16 and 17 of the state Constitution. Notably, the Judges and prosecutors worked together during COVID to reduce or eliminate cash bonds for many defendants, and discovered that few fail to return to court or commmit new crimes, whether there is bond money in jeopardy or not. Public defenders have thankless jobs, but many persist, even for small salaries of far less than $100,000 per year.

Posted by: Jim Gormley | Feb 12, 2024 12:23:09 PM

In my state, there are fees. But the maximum "ordinary" fee is $750.00 for a homicide case. While, in theory, the public defender can ask for additional fees in an extraordinary case, I am unaware of anytime that such a request has been made.

And the public defender really does not make an effort to collect them. It is more of, pay it if you can. If not, maybe an income tax refund might be intercepted, but nothing beyond that. Given that the fees are less than 10% of the retainer for hired attorney and the fee is only assessed at the end of the case, I do not see the fee as that much of a burden (especially as court has discretion to waive for the extremely indigent).

Posted by: tmm | Feb 12, 2024 1:58:02 PM

There is, I have to admit, a certain unseemliness to the government demanding recompense when it dropped charges.

Posted by: federalist | Feb 12, 2024 2:28:49 PM

Speaking as a court-appointed criminal defense attorney in the Sixth Judicial District of Iowa, this article doesn't present the full picture. The Iowa Legislature passed a reasonable ability to pay statute a few years ago. A defendant files a financial affidavit at sentencing or within 30 days of entry of judgment and the Court determines if the defendant has the reasonable ability to pay court costs and attorneys' fees (fines and victim restitution can't be waived). Most of the judges in my district waive court costs and attorneys' fees for indigent defendants, although sometimes payment plans are used if the judge thinks that there will be a reasonable ability to pay in the future. Further, some judges impose only a token $60 for attorneys' fees and the state public defenders (who are salaried) frequently only report $60 in fees were incurred. One of the weaknesses in the system is that it is very discretionary with the judge and judges vary. Thus, a lot of defendants are not being assessed with attorneys' fees, but some are.

When the statute was passed, there was a limited window of time where defendants with preexisting court debt could apply for a reasonable ability to pay determination to reduce or eliminate the charges for court costs and attorneys' fees. Unfortunately, that was not widely publicized. Some attorneys told their clients. Word got around the prisons. But I think the vast majority of people out in the community owing money didn't know they could apply for that.

The current court-appointed rate is $73 for most cases ($83 for A and $78 for B felonies). I don't consider that "high," although maybe it is compared to other states. There are fewer and fewer attorneys willing to do that work each year, which is overloading the rest of us.

Posted by: Webb Wassmer | Feb 13, 2024 10:56:09 AM

Webb Wassmer --

Thanks for some level-headed, on-the-ground experience letting us in on the detail of how it actually works.

Posted by: Bill Otis | Feb 13, 2024 2:10:48 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB