Public defense is a right, but it still often come with a price, according to a new report from the Center for Justice Innovation and the National Legal Aid & Defender Association, which examines defender fees across the country. The analysis finds that 42 states and Washington, D.C. still charge fees for public defense attorneys. That sometimes leads defendants to be saddled with big bills – and if they fail to pay, they risk having it taken out of their paycheck, getting their driver’s license suspended, or even getting arrested again.
More than 60 years ago, the Supreme Court ruled in Gideon v. Wainwright that everyone, regardless of their income, has the right to an attorney in a criminal case. That’s especially important because low-income people are overrepresented in the justice system.
But the report’s investigators found that little is known about how exactly courts assess defender fees, and practices vary from state to state. “To pull back the curtain, our researchers conducted a nationwide survey of public defense attorneys on how they see defender fees impacting their communities,” wrote the report’s authors.
The defense attorneys surveyed overwhelmingly opposed the use of defender fees. A majority said these fees put a financial burden on their clients, keep people trapped in the system, and contribute to racial and ethnic disparities. Many were also concerned that defender fees might undermine people’s trust in their attorneys and in the justice system as a whole, a growing problem in recent years.
Fully 12 percent of those surveyed had seen a client waive their right to an attorney altogether because they couldn’t afford the upfront costs.
That inevitably leads to worse outcomes -- research shows that facing a criminal case without an attorney, meanwhile, can lead to harsher sentences, more time spent in jail while a case is pending, and a greater risk of wrongful conviction.
Part of the problem is that courts don’t always evaluate a person’s ability to pay before imposing defender fees. And while some courts can offer to reduce or even waive these fees, fewer than a third of the attorneys surveyed said they had been trained on how to advocate for that relief.
The report also suggests potential solutions.
Some states, like California, New Jersey, and Delaware, have passed reforms doing away with defender fees altogether. For that particular reform to work elsewhere, courts will need a better understanding of how defender fees are used and will also need to develop new, more innovative ways of funding their public defense systems.
The report also advocates for education on the harms of defender fees for everyone in the system—attorneys, public defense leaders, judges, and clerks, to “shift the culture in courts towards decisions that help people get back on their feet instead of saddling them with debt.”