The Price of Public Defense

When states charge poor defendants for legal representation, they compromise the constitutional right to an attorney and create a tenacious cycle between poverty and incarceration. But the practice of charging steep, unbending fees for public defense is widespread in the U.S., according to a report released today by the Brennan Center at New York University School of Law.

The new report looks at the 15 states with the country's largest prison populations and found that all 15 have some form of "user fees" for defendants who choose to accept an appointed defense attorney, and that states and municipalities faced with budget shortfalls have expanded these fees in recent years.

Most states don't consider the defendant's ability to pay before imposing the fees, and many will revoke parole for the failure to pay, creating de facto debtor's prisons. Perhaps even worse, some states will deny necessities like drivers licenses while a defendant has an outstanding debt. A driver's license is, of course, necessary to get to work in most places -- so the debt itself, while piling up with interest rates, can actually prevent a defendant from getting a job to pull out of the debt itself. Begin the vicious cycle.

Take a look at the Brennen Center report's executive summary and USA Today's coverage of the report. (Read more after the jump.)

The combination of state and local fees for indigent representation is often in the hundreds or thousands of dollars for each defendant, and the Brennan Center report finds that states have (somewhat unsurprisingly) failed to account for the cost of collecting these small debts. Many counties, cities and states put parole officers and other salaried employees on the task of tracking down debts, when they could be working on other -- more important -- duties, like helping parolees find jobs and adjust to life outside of prison.

One case study in the report finds that Mecklenburg, North Carolina, held 246 debtors in jail last year pending compliance hearings for an average of four days -- at a cost to the county of $40,000. They collected $33,000 from those people (and the $40,000 number leaves out serveral less tangible costs, like the cost to the community of lost work and the administrative costs of the court to hold these debt cases).

These fee structures mean that some defendants decline legal representation altogether, while others get caught in the cycle of debt, collection and incarceration. Defendants should have financial responsibilities for the suffering and expense that their crimes cause, but there's a reason we guarantee legal representation in this country regardless of the ability to pay. States should be sure to evaluate a defendant's ability to pay and waive the fees up front if the accused truly has no money. Charging an indigent defendant for legal representation is a recipe for systemic breakdown and an endless criminalization of poverty.

Photo Credit: walknboston