More than 60 years after the Supreme Court guaranteed the right to an attorney for those who can’t afford one, public defense attorneys still often come with a price. Our new report takes a closer look at the role of defender fees across the country.
If you’ve seen any TV crime drama, you’ve likely heard what’s called the Miranda warning, the list of rights for someone who’s been arrested that starts with “You have the right to remain silent.” They go on, “You have the right to an attorney. If you cannot afford an attorney, one will be provided for you.”
But what you might not know is that your court-appointed attorney can still come with a hefty bill. Fail to pay, and you risk having a portion of your next paycheck seized, having your driver’s license suspended, or even getting arrested again.
This is a reality faced by far too many people in our criminal justice system today. More than 60 years after the Supreme Court ruled in Gideon v. Wainwright that everyone, regardless of their income, has the right to an attorney in a criminal case, 42 states and Washington, D.C. still charge fees for public defense attorneys.
Yet 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.
The defense attorneys we heard from 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.
Some public defense attorneys witnessed these harms firsthand: 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’s not surprising given that low-income people are overrepresented in the justice system to begin with. 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.
Our report found more support for defender fees as a way of funding public defense systems among those in leadership roles, likely due to their more hands-on role in managing budgets. Yet in a second survey we conducted of public defense leaders and court administrators, nearly half of those who participated said they couldn’t estimate how much revenue actually comes from defender fees, and even fewer could say how much went unpaid.
Adding to the problem is the fact 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 we heard from said they had been trained on how to advocate for that relief.
Though these challenges are complex, our report also shed light on some potential solutions. Some states, like California, New Jersey, and Delaware, have passed reforms doing away with defender fees altogether. For that to work elsewhere, courts will need a better understanding of how defender fees are used, as well as new, smarter ways of funding their public defense systems. That understanding is crucial to alleviating the financial burden people face in the justice system without hurting their access to strong legal representation.
Defense attorneys also reported that when they were able to advocate for their clients’ financial needs, their clients were more likely to be granted waivers or deferrals for defender fees. And while only about half of those surveyed said that courts considered their clients’ ability to pay before imposing fees, fair ability-to-pay determinations are another common-sense measure that can potentially reduce the burden on people who are already struggling financially.
Last but not least, education on the harms of defender fees for everyone in the system—attorneys, public defense leaders, judges, and clerks—can shift the culture in courts towards decisions that help people get back on their feet instead of saddling them with debt. That education can, and should, reflect the experiences of people who have been through the justice system themselves and can speak to the real-life impacts of charging fees for public defense attorneys.
It’s no secret that funding public defense systems has been a challenge for communities across the country in the 60 years since the Supreme Court’s landmark Gideon decision. Understanding the role of defender fees in that problem, and the harms they cause for the people who need public defense the most, is a critical first step towards making sure everyone gets access to the representation they deserve.