THE SPREAD OF INDIGENT DEFENSE FEE LAWS
The right to government-funded counsel for indigents originates from landmark Supreme Court cases, notably Gideon v Wainwright, which established this right for felony cases, and Powell v Alabama, which addressed capital crimes These rulings affirm that while the Sixth Amendment does not mandate state-sponsored defense attorneys for every prosecution, it does require states to provide legal representation for defendants who cannot afford an attorney in serious criminal cases.
The Sixth Amendment of the U.S Constitution guarantees the right to counsel in criminal prosecutions, although it does not specify that this counsel must be state-funded Historically, under English common law, defendants had the right to counsel only in misdemeanor cases until 1836, when felons were granted the same right By the time the U.S Constitution was framed, twelve of the thirteen original states had adopted the right to counsel for nearly all criminal prosecutions, moving away from the earlier English precedent For a deeper exploration of this evolution, refer to Ronald F Wright's analysis in the Iowa Law Review.
7 See Gideon, 372 U.S at 341; Powell, 287 U.S at 71 In 1938, the Court held that the Sixth Amendment required counsel in all federal criminal proceedings Johnson v Zerbst, 304
2050 WILLIAM AND MARY LAW REVIEW [Vol 47:2045
Court expanded the right to include defendants accused of any criminal offense if conviction could "end up in the actual deprivation of a person's liberty."'
This affirmative constitutional obligation, unlike others such as the warnings that the police must provide criminal suspects under
The Supreme Court's decision in Miranda v Arizona continues to significantly impact state budgets, as the expansion of the right to counsel has led to an increased fiscal burden Currently, 82% of felony defendants in large states rely on publicly funded legal representation, highlighting the growing necessity for appointed
The right to appointed counsel in criminal cases is recognized in various legal contexts, including felony preliminary hearings (Coleman v Alabama, 1970), sentencing proceedings (Mempa v Rhay, 1967), and appeals from convictions (Halbert v Michigan, 2005; Douglas v California, 1963) However, this right does not extend to situations where only a criminal fine is imposed without imprisonment (Scott v Illinois, 1979) or in cases of discretionary appeals (Ross v Moffitt, 1974).
The nonfiscal implications of the Miranda ruling and various constitutional protections established by the Court have been subjects of extensive debate Scholars, such as Paul G Cassell, have critically examined these issues, highlighting the social costs associated with Miranda in their empirical reassessments.
391 (1996) (suggesting that Miranda has prevented confessions in approximately one out of every six cases).
In the United States, the right to court-appointed counsel for indigents charged with misdemeanors varies significantly across jurisdictions, with only a limited number providing adequate coverage as required by the Supreme Court While courts have expanded the right to counsel, legislatures have countered this by lowering financial eligibility thresholds, which reduces the number of individuals who qualify for such legal assistance For instance, a defendant is deemed indigent if their income is at or below 200 percent of the federal poverty guidelines or if they receive specific government assistance This disparity in state standards for determining indigency leads to differing interpretations of the Gideon ruling, highlighting that its implications can differ markedly from one state to another.
Between 1982 and 1999, data from twenty-one states revealed a significant increase in state spending on appointed counsel, which rose more than two and a half times when adjusted for inflation This information is documented in the Bureau of Justice Statistics report on state-funded indigent defense services.
13 See CAROLINE WOLF HARLoW, BUREAU OF JUSTICE STATISTICS, U.S DEPT OF JUSTICE, DEFENSE COUNSEL IN CRIMINAL CASES 1 (2000), available at httpJ/www.ojp.usdoj.gov/bjs/pub/ pdf/dccc.pdf.
The political economy of application fees reveals that federal funding has consistently fallen short of meeting the constitutional mandate for indigent defense Consequently, state and local governments bear the financial burden, spending millions each year to uphold their obligation to provide legal representation for those who cannot afford it.
In the 1990s, budget shortfalls and constitutional challenges to underfunded indigent defense systems prompted state legislatures to seek alternative funding mechanisms for criminal defense Many states adopted privatization strategies to reduce their criminal defense budgets by transferring costs associated with indigent defense.
14 See James v Strange, 407 U.S 128, 141 (1972) (recognizing that the expansion of the right to counsel has "heightened the burden on public revenues").
Over 90% of funding for appointed counsel in twenty-one states comes from nonfederal sources, highlighting a significant reliance on state and local funding Despite the Court's stringent protection of the formal right to counsel, there is minimal regulation regarding the quality of legal representation provided.
Decline of Defense Counsel and the Rise of Accuracy in Criminal Adjudication, 93 CAL L REV.
The American Bar Association's report, "Gideon's Broken Promise: America's Continuing Quest for Equal Justice," highlights the alarming fact that nearly no federal funding is designated for defense services across the fifty states This underscores the ongoing challenges faced in ensuring equal justice for all individuals, particularly those who are indigent The full report can be accessed at the ABA's website for further insights into the state of legal aid and its implications for justice in America.
In 2002, state and local expenditures for indigent defense services surpassed $2.8 billion, highlighting the critical role counties play in funding these services For more detailed insights, refer to the Spangenberg Group's report on state and county expenditures for indigent defense services.
In six states, counties contribute 90% or more of the funding for indigent defense, highlighting the significant role of local governments in providing legal representation for those unable to afford it Various methods are employed to appoint counsel, including public defender programs, lists of private attorneys available for appointment, and the use of contract attorneys.
In his book review, Marc L Miller examines state litigation concerning the financial aspects of defense counsel systems, highlighting significant issues related to underfunding Bruce A Green further explores the ethical implications of this underfunding on legal counsel in his work, "Criminal Neglect: Indigent Defense from a Legal Ethics Perspective," emphasizing the critical need for adequate funding to uphold professional ethics in the legal system.
19 See generally PRIVATIZING THE UNITED STATES JUSTICE SYSTEM: POLICE,
The book "Adjudication and Corrections Services from the Private Sector," edited by Gary W Bowman et al (1992), posits that privatization can enhance the criminal justice system by alleviating court dockets and mitigating prison overcrowding Additionally, Laurie Reynolds discusses the growing trend of governments imposing charges for services in her article "Taxes, Fees, Assessments, Dues, and the 'Get What You Pay For' Model of Local Government," published in the Florida Law Review (2004).
WILLIAM AND MARY LAW REVIEW [Vol 47:2045 services back to the consumers-indigent criminal defendants. Today, cost recovery mechanisms typically take two primary forms:
(1) recoupment, a court order imposed at the conclusion of a case for the defendant to pay an amount reflecting the actual cost of attorney's fees, and (2) contribution (sometimes referred to as
"application fees," "co-pays," "user fees," or "administrative" or
Extent and Variety of Application Fees
In twenty-seven U.S jurisdictions, including twenty-five states and two counties, laws require or permit judges to charge indigent criminal defendants a fee for appointed counsel These regulations stipulate that the appointment of counsel is contingent upon the payment of this fee.
20 See ARIz REV STAT ANN § 11-584(B) (Supp 2005); ARK CODE ANN § 16-87- 213(a)(2)(B) (Supp 2005); CAL PENAL CODE § 987.5 (West Supp 2005); COLO REV STAT ANN § 21-1-103(3) (West 2004); CONN GEN STAT ANN § 51-298 (West 2005); DEL CODE ANN tit.
29, § 4607 (2003); FLA STAT ANN § 27.52(1)(b)-(c) (West Supp 2005); GA CODE ANN § 15-
Various state statutes, including IND CODE ANN § 35-33-7-6(c) and KAN STAT ANN § 22-4529, outline specific legal provisions relevant to criminal procedures For instance, KY REV STAT ANN § 31.211(1) and LA REV STAT ANN § 15:147(a)(1)(d) establish guidelines for legal processes, while MASS GEN LAWS ANN ch 211D, § 2A addresses certain judicial matters Additionally, MINN STAT ANN § 611.17 has faced partial invalidation in the case of State v Tennin, highlighting the evolving nature of legal interpretations in these jurisdictions.
Various state laws address the imposition of fees for legal representation, with some invalidated on constitutional grounds For instance, North Carolina's statute was partially invalidated in State v Webb, which found that assessing counsel fees on acquitted defendants violated the state constitution Other states, such as New Jersey, New Mexico, and Ohio, have provisions regarding fees, while Missouri law allows for a discretionary application fee for qualified indigents, although it is reportedly not in use currently.
The Office of the Public Defender in King County, Washington, charges a processing fee of $25 for legal services, as noted on their official website Similarly, the Department of Assigned Legal Counsel in Pierce County, Washington, also requires a $25 application fee for legal assistance, as detailed on their site.
The political economy of application fees varies significantly across states, ranging from $10 in New Mexico to $480 in Wisconsin Some states link fee amounts to the severity of the criminal offense, while others establish a monetary range and allow trial judges to consider a defendant's ability to pay Depending on the specific statutes, these fees may be collected by the court or by public defenders and other entities responsible for determining defendants' eligibility for counsel.
All states, except Florida, allow trial judges to waive application fees for defendants unable to pay, ensuring compliance with constitutional limits While states can require future payment of these fees, they must also inform defendants about the collection process For example, in Delaware, defendants who cannot afford the $50 fee must consult the Commissioner of Corrections for work options to settle the debt In Minnesota, the Revenue Recapture Act enables the state to garnish wages, seize property, report to credit bureaus, and impound vehicles as methods of fee collection.
22 See N.M STAT ANN § 31-15-12(C) (West 2003); WIs ADMIN CODE PD § 6.01 (2005).
23 See, e.g., IND CODE ANN § 35-33-7-6 (LexisNexis Supp 2005) ($50 for a misdemeanor and $100 for a felony).
24 See, e.g., ARK CODE ANN § 16-87-213(a)(2)(B)(i)(a) (Supp 2005) (range from $10 to
Various states have established different fee structures for court-related expenses, with amounts ranging from $50 to $200, as seen in TENN CODE ANN § 40-14-103 (2003) Additionally, KY REV STAT ANN § 31.211(1) allows courts to determine fees based on individual circumstances, permitting payments in lump sums or installments Furthermore, OR REV STAT ANN § 151.487(1) mandates fees if the court determines that an individual has sufficient financial resources to cover part or all of the administrative costs associated with eligibility assessments and legal services provided at state expense.
25 See, e.g., IND CODE ANN § 35-33-7-6 (LexisNexis Supp 2005); MINN STAT ANN § 611.17(c) (West Supp 2005); N.D CENT CODE § 29-07-01.1(1) (Supp 2005).
26 See, e.g., COLO REV STAT § 21-1-103(3) (2004); N.M STAT ANN § 13-15-12(C) (West 2003).
27 See, e.g., Griffin v Illinois, 351 U.S 12, 19-20, 24 (1956) (invalidating state law that conditioned access to trial transcripts on appellant-defendants' ability to pay).
In 2003, Minnesota law temporarily prohibited waivers, as outlined in MINN STAT ANN § 611.17(c), but this provision was later repealed The Minnesota Supreme Court ultimately ruled this aspect of the law unconstitutional, as detailed in FLA STAT ANN § 27.52(1)(b)-(c) and further discussed in notes 133-43.
30 See MINN STAT ANN § 270A.03-04 (West 1998 & Supp 2006).
In many states, defendants face the risk of probation revocation and potential sentence enhancement due to nonpayment of fees, which are imposed even if they are not convicted of the charged offense.
The Application Fee Trend
POLITICAL ORIGINS OF APPLICATION FEE STATUTES
Application fee statutes are introduced and processed similarly across various states, primarily driven by leaders from organizations that supply criminal defense lawyers to indigent defendants, known as the "defense establishment." Their main goals include addressing urgent budgetary issues and building credibility with legislators and other key stakeholders in crime politics, such as law enforcement officials Although these fees may negatively affect individual clients financially, the overarching aim is to strengthen the organization's financial stability, ultimately enhancing the quality of representation for an expanding client base.
Opposition to the implementation of application fees often arises from within defense organizations, particularly from lower-level staff who directly serve clients Key discussions regarding the advantages of these fees occur internally rather than in legislative settings While prosecutors and law enforcement may endorse such laws, they do not actively advocate for them Consequently, state legislatures are generally reluctant to enact these laws due to the strong and unified resistance from established defense organizations.
This section explores the political context surrounding the application fee statute in North Carolina, highlighting key themes that resonate in application fee discussions across the country It examines how the unique political landscape influences legislative outcomes, particularly where defense-oriented organizations play a pivotal role in shaping critical aspects of criminal justice administration.
The Defense Establishment and Application Fees
The idea for an application fee statute in North Carolina origi- nated from within the defense establishment The Commission on Indigent Defense Services (IDS), a statewide body created late in
2000 to establish standards and coordinate budgets for the county-
In 2002, in response to a growing budget deficit, Democratic Governor Mike Easley urged all state agencies, including courts and corrections, to identify areas for budget cuts To address this financial challenge, the chief financial officer for the Indigent Defense Services (IDS) proposed a strategy aimed at establishing credibility with key legislators involved in the appropriations process.
In 2002, the Commission sought to simplify existing recoupment statutes, proposing a co-pay system of $40, inspired by a successful Florida law The executive director of IDS supported this initiative, highlighting that many individuals unable to afford $5,000 for legal representation could manage a smaller fee The Commission chair emphasized the importance of presenting cost-saving measures, leading to an authorization for staff to develop co-payment proposals for indigent clients This idea gained traction, and in subsequent meetings, the Commission reviewed legislative proposals that included amendments to the recoupment statute and a new $50 application fee for defendants receiving public counsel Executive Director Malcolm "Tye" Hunter argued that the proposal would succeed if IDS advocated for it, framing it as essential for the overall health of the program.
35 Indigent Defense Services Act of 2000, 2000 N.C Sess Laws 144.
36 Associated Press, N.C Agencies Leave Jobs Vacant To Meet Budgets, CHARLOTTE OBSERVER, Apr 10, 2002, at 3B.
37 Meeting Minutes of Comm'n on Indigent Def Servs., in Raleigh, N.C (Apr 19,2002), available at http://www.ncids.org/IDS%20Commission/2002%20Meeting%20Minutes/02- April.htm.
The meeting minutes of the Commission on Indigent Defense Services, held in Durham, N.C on May 10, 2002, and in Asheboro, N.C on June 21, 2002, provide essential insights into the discussions and decisions made regarding indigent defense These documents are accessible online at the North Carolina Indigent Defense Services website, highlighting the ongoing commitment to ensuring legal representation for those in need.
43 IDS Minutes, May 2002, supra note 42.
In 2006, the discussion surrounding the political economy of application fees highlighted the fund's financial difficulties and the Commission's request for additional legislative funding Hunter projected that the implementation of the fee could yield over a million dollars annually He contended that this fee would minimally affect defendants, as judges would not refuse counsel based on nonpayment.
"many clients can afford to pay $50 "4 '
Some commissioners expressed concerns about the proposed application fee, questioning whether indigent defendants, particularly from high-unemployment groups, could afford it They highlighted that a $50 fee could significantly impact their ability to buy essentials like groceries, potentially pressuring defendants to forgo legal representation These apprehensions primarily came from commissioners with backgrounds as trial judges or practicing defense attorneys When inquiring about waiver rates from other states, staff noted that such data was not collected, making it challenging to assess potential outcomes.
All but one commissioner agreed that pursuing the application fee was justified The proposed statute clearly indicated that inability or failure to pay the appointment fee would not serve as a reason to deny counsel appointment, thereby safeguarding the rights of the destitute.
In June 2002, the IDS Minutes highlighted the importance of enhancing representation, as discussed by Hunter He emphasized that fees collected would contribute to the fund's income for the current fiscal year, ultimately benefiting all clients.
45 IDS Minutes, May 2002, supra note 42.
47 IDS Minutes, June 2002, supra note 42.
In the minutes from May and June 2002, objections were raised by various legal professionals, including public defenders and capital defense attorneys, regarding the application of fees to defendants who are acquitted or have their cases dismissed Some commissioners expressed concern about this issue, but Executive Director Hunter clarified that acquitted defendants do not receive refunds from retained attorneys, emphasizing that a $50 fee is a worthwhile investment even for those found not guilty.
49 IDS Minutes, June 2002, supra note 42.
50 Id Only Henry Boshamer, the commissioner appointed by the county-level public defenders, voted against the fee proposal Id
The commissioners, led by a representative from the state bar association, rejected an amendment that would have required judges to inform defendants that nonpayment of a fee would not affect their right to an attorney They believed this would discourage defendants from paying the fee, thus failing to generate revenue Consequently, the existing practice remains, where judges can inform defendants that appointed attorneys are not free, as they may be required to pay for services later after a recoupment hearing The commissioners opted to monitor the situation before implementing any new rules to decrease the number of waivers but did not establish a method to evaluate the fee's impact on potential clients' decisions.
The North Carolina legislature quietly approved the application fee statute after the IDS Commission finalized its proposal, incorporating it into a larger budget bill Observers recognized the IDS Commission as the origin of this legislation.
Following the law's enactment, public defenders and private attorneys across various counties voiced their concerns, criticizing the legislation Many legal professionals swiftly filed constitutional challenges, highlighting that the imposed fees could discourage defendants from seeking appointed counsel.
In June 2002, Commissioner Joe Cheshire, appointed by the North Carolina Bar Association to the Commission, expressed his belief that most criminal defendants have engaged in wrongdoing Consequently, he stated that he was not opposed to requiring these defendants to contribute a nominal fee for quality legal representation.
55 See Current Operations, Capitol Improvements, and Finance Act of 2002, 2002 N.C. Sess Laws 126.
56 See Paul Garber, Court To Decide If Fee for Indigents Is Legal, WINSTON-SALEM J
(N.C.), Apr 3, 2003, at B1 (stating that IDS "pushed for the fees last year to help make up for budget shortfalls").
A Guilford County judge is set to determine the constitutionality of a new fee imposed on poor defendants, as highlighted by Public Defender Wally Harrelson, who argues that this statute creates a troubling precedent of levying costs on indigent individuals during times of state financial shortfalls In a related case, a Durham senior judge declared a $50 application fee unconstitutional, further emphasizing the ongoing legal debates surrounding fees for low-income defendants in North Carolina.
In 2006, the issue of application fees for court-appointed attorneys raised significant concerns among public defenders, such as Forsyth County's Pete Clary, who highlighted that defendants often believe they must pay $50 to qualify for legal representation Many frontline defenders criticized the focus on financial aspects, emphasizing their primary role in assisting clients rather than fundraising They found it ironic that those tasked with safeguarding the rights of indigent individuals were the same ones advocating for the implementation of such laws.
Despite criticism, the application fee statute remained intact after its passage The IDS Commission considered repealing the fee for public relations purposes but ultimately decided against it, believing they had already overcome the initial backlash Executive Director Hunter expressed confusion over the public defenders' concerns, noting that the appointment of counsel was not strictly dependent on the payment of the fee.
Debate Themes
The political debate surrounding application fees in North Carolina mirrored discussions in other states, highlighting predictable organizational priorities among debaters based on their positions Additionally, proposals for fees emerged during periods of significant budgetary strain affecting indigent criminal defense programs, as seen in Minnesota.
58 See Fuchs, supra note 57 (quoting Public Defender Wally Harrelson as suggesting that the fee could have a "chilling effect" by discouraging some defendants from getting court- appointed lawyers).
59 See Paul Garber, Court Fee Is Under Fire, WINSTON-SALEM J (N.C.), Mar 13, 2003, at B1.
60 Id (quoting public defenders Pete Clary and Wally Harrelson).
61 See Meeting Minutes of Comm'n on Indigent Def Servs., in Raleigh, N.C (May 8,
2003) [hereinafter IDS Minutes, May 20031, available at http'J/www.ncids.org/IDS%20 Commission/2003%2OMeeting%20%2OMinutes/05_03.htm.
63 Editorial, Court Fees, WINSTON-SALEM J (N.C.), Mar 16, 2003, at A18; Garber, supra note 59
In response to budget cuts aimed at reducing public defender service appropriations by 15%, the legislature implemented a new application fee law This trend of introducing application fees during budgetary constraints has been observed in several other states as well.
In an environment of inconsistent funding, defense group leaders prioritized application fees due to their immediate and long-term budget implications In states like Ohio, these leaders proposed application fees to enhance their image of fiscal responsibility, despite their reluctance Faced with pressure from governors and legislatures to reduce program costs, they viewed application fees as a necessary solution during challenging financial periods As Minnesota's state public defender John Stuart noted, reliance on general revenues would be preferable, but the absence of such funding led to the implementation of application fees to avoid a significant budget cut for public defenders.
In a significant development reported by Margaret Zack and Pam Louwagie in the Star Tribune on September 4, 2003, public-defender fees have been dismissed, highlighting ongoing concerns about the funding crisis within the public defender system, as discussed by James L Baillie in the February 2004 issue of Bench & Bar of Minnesota This issue has been further addressed in the Brief of Amici Legislators in the State v Tennin case, emphasizing the urgent need for reform in legal representation funding.
In a recent article, Laura A Bischoff highlights Ohio's Taft Budget Plan, which aims to generate $56 million through various user fees, including application fees Additionally, Rachel Tobin Ramos reports on Fletcher's efforts to mobilize judges in opposition to a bill designed to fund public defenders in Georgia.
On September 19, 2004, Georgia lawmakers utilized a court administration bill to implement application fees for appointed counsel, citing challenges in funding new programs during tight budget periods Similarly, an editorial in the Greenville News on September 18, 2003, highlighted how Greenville County addressed the "unfunded mandate" from the Supreme Court's ruling in Alabama v Shelton by introducing an application fee.
In Ohio, the public defender's office has proposed an application fee as a means to generate new funding, following the governor's directive for agencies to identify alternative revenue sources A spokesperson from the Ohio Public Defender's Office noted that this fee would not have been supported during better budget conditions, highlighting the challenges faced in fiscal management Additionally, previous discussions emphasized that implementing such a fee demonstrates a commitment to financial responsibility and attempts to raise funds effectively.
Margaret Zack from the Hennepin County Public Defenders is contesting a new law, as reported by the STAR TRIB on July 3, 2003 Additionally, Bill Rankin highlighted in the ATLANTA JOURNAL-CONSTITUTION on March 11, 2004, that the director of the Georgia Public Defender Standards Council supports a proposed funding package aimed at indigent defense.
20061 THE POLITICAL ECONOMY OF APPLICATION FEES 2061
Colorado, the Office of the State Public Defender backed a fee as a means to reduce its misdemeanor caseload and thereby provide additional resources for its felony-level representations 8
Critics of application fees for public defenders argue that these fees undermine the constitutional right to legal representation, particularly affecting low-income individuals They emphasize that charging poor people for exercising their Sixth Amendment rights is fundamentally unjust, comparing it to not imposing fees for welfare benefits Concerns also arise that even a small application fee could deter defendants from seeking counsel, ultimately compromising their access to justice Public defenders assert that the focus should remain on protecting constitutional principles rather than accommodating budgetary constraints.
68 See THE SPANGENBERG GROUP, supra note 34, at 5-6.
In Minnesota, the introduction of fees for public defenders has sparked controversy, with many public defenders opposing the new charges However, the state's chief public defender has expressed support for the implementation of these fees.
The issue of indigent defense highlights the financial burdens placed on defendants who cannot afford legal representation As noted by Kathryn Kase of the Texas Defender Service, the costs associated with public defenders can be significant Professor Norman Lefstein argues that imposing fees on defendants undermines their fundamental right to counsel Similarly, Georgia defense attorney Stephen Bright emphasizes that the state has a constitutional obligation to provide defense services, and the costs should be collectively borne by society This ongoing debate reflects the critical importance of ensuring equitable access to legal representation for all individuals, regardless of their financial status.
(arguing that state-funded defense counsel is an "unavoidable consequence] of a system of government which is required to proceed against its citizens in a public trial").
The imposition of application fees for public defenders may deter individuals from exercising their right to counsel, as those unable to afford the fees might choose to represent themselves instead This concern is echoed by legal experts who argue that such fees could lead to coerced waivers of essential rights, undermining the principles established by Gideon and Miranda Ultimately, rather than generating revenue, these fees could exacerbate existing issues within the court and public defender systems.
WILLIAM AND MARY LAW REVIEW [Vol 47:2045
Critics of the waiver proposal did not provide concrete data but highlighted the harsh realities of poverty, sharing anecdotes that indicated even a minimal fee could significantly influence waiver decisions for many defendants A public defender in Minnesota illustrated that a fee, even a small one, could have substantial implications for those seeking waivers.
Critics argue that the application fees of $50 to $200 can significantly impact defendants' families, effectively "taking food out of the mouths of [defendants'] children." While these fees may appear small in isolation, they become more burdensome when considered alongside other costs, such as probation services and victim assistance fund fees In response to these concerns, supporters of the fees highlight that they are relatively minor compared to the overall expenses of criminal defense and point out that judges have the discretion to waive fees for individuals in genuine financial distress.
In recent discussions about legal aid, concerns have been raised regarding the financial burden placed on clients, particularly those with limited resources Geoffrey Isaacman, a Hennepin County assistant public defender, criticized the approach of balancing budgets at the expense of vulnerable individuals, emphasizing the detrimental impact on their credit ratings Similarly, a public defender in Fulton County highlighted the challenges faced by clients who often cannot afford even nominal fees, especially those incarcerated These statements underscore the urgent need for a more equitable legal aid system that does not penalize those who are already struggling financially.
Political Theory and Internal Defense-Side Politics
JUDICIAL RESPONSES
The political dynamics influencing the enactment of application fee laws in states overlook a crucial institution: the judiciary Judges, alongside prosecutors and defense attorneys, play a vital role in the daily functioning of the U.S criminal justice system They not only operate the established mechanisms but also periodically redesign them when implementing new laws or addressing constitutional challenges In the context of application fees for defendants seeking state-funded defense, judges have made significant decisions that impact both their operational role and their responsibility in reshaping the criminal justice framework.
Judges, largely insulated from the broader fiscal and public relations impacts of fee laws, have created practical barriers to the collection of application fees in court They possess the authority to grant waivers with minimal justification or even issue blanket waivers for specific categories of defendants When the fee statute designates the court clerk as the collector, judges may neglect to encourage active collection efforts Similarly, if public defender offices are responsible for announcing and collecting the fees, judges may indicate their acceptance of a lackadaisical approach to these collections.
118 See, e.g., Pollak, supra note 72 (noting that a state court judge in Houston County, Georgia, issued an order waiving the application fee in all criminal cases).
119 See supra note 79 and accompanying text.
2006] THE POLITICAL ECONOMY OF APPLICATION FEES
Judges have significantly influenced the effectiveness of application fee statutes through their decisions on legal challenges In Minnesota and North Carolina, the only states where appellate courts have evaluated these provisions, both trial and appellate judges have actively determined the outcomes of application fee laws.
In North Carolina, trial courts in Durham, Forsyth, Orange, and Guilford counties enjoined implementation of the state's $50
The imposition of an "appointment fee" on both convicted and acquitted defendants was found to violate state and federal constitutional law In response, the North Carolina attorney general sought a statewide ruling from the Supreme Court to clarify the fee's applicability across the remaining ninety-six counties Uncommonly, the Supreme Court permitted the State to appeal a trial court ruling and instructed court personnel to continue applying the fee in all counties until a final decision is made.
In February 2004, the court unanimously ruled in State v Webb, declaring the fee invalid The decision was grounded in North Carolina law, with the Webb court aligning with the lower court's findings that the fee contravened a provision of the state constitution.
The notable lack of challenges regarding fee provisions is surprising, especially considering the significant amount of litigation related to other criminal justice fees in recent years, as highlighted in cases such as State v Beltran, 825 P.2d 27, 29 (Ariz Ct App.).
In 1992, the Massachusetts Supreme Judicial Court ruled that a "counsel fee," initially set at $40 and later increased to $150, was constitutionally valid as it did not restrict a defendant's access to legal counsel based on their ability to pay This decision was made in the case Cameron v Justice of the Taunton Dist Court, emphasizing the importance of ensuring that financial barriers do not impede a defendant's right to legal representation Additionally, this ruling aligns with the precedent set in Hanson v Passer, which further explores the implications of fees on the availability of counsel.
"court cannot withhold the constitutionally-mandated appointment until a sum of money is paid").
121 State v Draper, No 02 CR 104461 (Guilford County Dist Ct 2003); State v Kelly, No.
In various legal cases, including 02 CR 952 from the Orange County Superior Court in 2003, State v McNeil (No 02 CR 19580) from the Durham County District Court, State v Rubio (No 03 CR 51971) from Forsyth County District Court, and State v Webb (No 00 CRS 60884) from the Durham County Superior Court, significant legal precedents were established These cases highlight the complexities of the judicial system, as discussed by legal expert Paul Garber.
Lobby Justices for Ruling on Court Fees: $50 Indigent Fee Collected Unevenly in State,
122 Petition for an Extraordinary Writ and Motion Under Rule 2, State v Kelly, No. 156PA03 (N.C Mar 24, 2003); see also Garber, supra note 121.
The William and Mary Law Review discusses a case where the court addressed the issue of financial liability imposed on defendants, emphasizing that such liability should only apply to those "convicted" of crimes and be limited to "costs." The State contended that the fee, applied regardless of a defendant's outcome, was a combination of attorney's fees and administrative costs, thus falling outside constitutional restrictions However, the court ruled that the fee was essentially a cost, aimed at supporting the criminal justice system's ability to prosecute indigent defendants eligible for court-appointed counsel Consequently, the fee was deemed a violation of the state constitution, which prohibits charging acquitted defendants for "costs."
The court determined that the law could be applied to convicted defendants, as the constitutional prohibition on payment of costs did not pertain to them Additionally, it ruled that imposing the law solely on convicted defendants did not infringe upon their Sixth Amendment right to counsel, as the fee aimed to cover prosecution expenses rather than punish those seeking court-appointed representation The court also noted that a defendant's awareness of potential repayment for legal services did not significantly deter their decision to rely on counsel.
125 See id at 509 (quoting and discussing N.C CONST art I, § 23, which provides that
In criminal prosecutions, individuals charged with a crime are entitled to the right of not being forced to cover costs, jail fees, or essential witness fees for their defense unless they are found guilty.
The court clarified that article I, section 23 of the state constitution does not exempt acquitted defendants from the obligation to pay for their own legal counsel However, it does protect them from being required to cover costs associated with a system aimed at reimbursing the state for expenses incurred during the prosecution process.
130 Id at 512 The court upheld use of application fees with regard to convicted defendants pursuant to a severability provision in the fee law Id
131 Id at 513 (citing Fuller v Oregon, 417 U.S 40, 53 (1974)).
2006] THE POLITICAL ECONOMY OF APPLICATION FEES than recoupment or other constitutionally acceptable established practices 132
Minnesota's amended application fee law faced immediate constitutional challenges due to the absence of a waiver provision for defendants experiencing financial hardship and the increase of the fee from $28 to between $50 and $200 based on the offense level In Hennepin County, local public defenders initiated a strategic litigation project to contest the law's constitutionality, despite support from the state public defender To prevent a backlog of court challenges, Hennepin County agreed to suspend the fee until a test case could be heard On September 2, 2003, shortly after the law's implementation, a judge invalidated the non-waivable fee on Sixth Amendment grounds and suspended its enforcement, acknowledging the potential financial implications for the public defender's budget and certifying the issue to the Minnesota Court of Appeals.
According to MINN STAT ANN § 611.17(c), the fee for public defender services is determined by the offense level at the time of appointment, and any subsequent dismissals or amendments do not alter this fee structure The Fourth Judicial District's Public Defender Eligibility Guidelines, effective September 2, 2003, support this framework In the case of State v Cunningham, the Minnesota Court of Appeals upheld the $28 application fee, ruling that it does not infringe upon the right to counsel or equal protection rights of low-income and minority defendants.
134 E-mail from Leonardo Castro, Hennepin County Chief Public Defender, to Wayne Logan, Professor of Law, William Mitchell College of Law (Aug 4,2005) (on file with authors).
In the case of State v Tennin, the Hennepin County District Court highlighted significant "administrative problems" that the county would encounter if it opted to collect co-payments from numerous cases and subsequently had to issue refunds for those payments.
WILLIAM AND MARY LAW REVIEW
FEES AND WAIVER RATES
There is strong evidence suggesting that the implementation of application fees significantly influences a defendant's decision to waive legal counsel Attorneys and judges have observed a rise in waiver instances following the introduction of these fees Moreover, legal professionals often argue during legislative discussions that such fees will lead to an increase in waivers Once these statutes are enacted, many in the legal field report that their expectations are validated, noting a higher number of defendants opting to forgo defense representation.
In North Carolina, a district court judge in Durham County observed a decrease in applications for court-appointed lawyers three months after the implementation of the fee statute This sentiment was echoed by other misdemeanor court judges in the state, reflecting similar concerns voiced by defense attorneys nationwide.
Research on consumer behavior in health insurance reveals that increased co-payments significantly deter patients from seeking medical care Similar to the concerns raised by criminal defense attorneys about application fees, practicing physicians have voiced criticism regarding these upfront costs, emphasizing the negative impact on patient access to necessary healthcare services This highlights the importance of understanding individual consumer choices rather than relying solely on aggregate statistics.
A Durham County District Court Judge observed a decrease in the number of individuals seeking court-appointed lawyers, highlighting a concerning trend in legal representation for indigent defendants This issue was further emphasized in a recent article by the Associated Press, which discusses the ongoing challenges faced by those unable to afford legal fees.
The recent amendments to the statute, which have been in effect for less than four months, have led to a noticeable decline in the number of individuals seeking court-appointed lawyers, as observed by judges.
148 See supra notes 71-74 and accompanying text.
149 See, e.g., Emmett B Keeler, Effects of Cost Sharing on Use of Medical Services and Health, 8 J MED PRAC MGMT 317, 317-18 (1992).
WILLIAM AND MARY LAW REVIEW recent efforts to increase medical insurance co-payments among the poor, despite positions to the contrary adopted by some in the medical leadership 5 2
The debate surrounding application fees lacks empirical evidence, highlighting a broader knowledge gap regarding the waiver of counsel While it is often stated that waiver rates are low, these claims primarily focus on felony cases, where the federal system and large urban counties report waiver rates of less than one percent Consequently, instances of waiver are viewed as anomalies, potentially linked to mental impairment in defendants or issues in the relationship between defendants and their appointed counsel.
Misdemeanor defendants often grapple with waiver decisions due to the less severe sanctions compared to felonies, leading them to confront the state’s prosecutorial power independently This unpredictable waiver choice has significant implications for both the criminal justice system and the individuals involved Financially, the stakes are considerable, as misdemeanor cases, while less costly, still impact overall system expenditures.
In a discussion on the Medicaid Commission's proposal to raise co-payments for low-income individuals, Robert Pear highlights the ongoing debate surrounding this issue (N.Y TIMES, Aug 18, 2005) Additionally, research by Jonathan Klick and Thomas Stratmann reveals that elderly Medicare beneficiaries exhibit sensitivity to fluctuations in prescription drug prices, indicating that their responses are influenced not only by insurance coverage but also by the cost of medications (Fla State Univ Coll of Law, Law & Econ Working Paper No 05-17).
153 See, e.g., Marie Higgins Williams, Comment, The Pro Se Criminal Defendant, Standby Counsel, and the Judge: A Proposal for Better-Defined Roles, 71 U COLO L REV 789, 815
In the United States, criminal defendants often represent themselves, with estimates suggesting they do so in around fifty trials annually, although this figure is likely much lower than the actual number Additionally, the absence of reliable data on indigent defense poses a major obstacle to recognizing, assessing, and resolving systemic shortcomings within the legal system.
In 1996, a study of the seventy-five largest counties in the United States revealed that only 0.4% of felony defendants in terminated cases chose to waive their right to defense counsel Similarly, in the federal system, this figure was even lower, with only 0.3% of felons opting to forgo legal representation.
Research by Miller and Wright highlights the complexities of criminal procedures, while Hashimoto's unpublished study reveals that most pro se federal felony defendants do not show signs of mental illness Many of these defendants choose self-representation due to dissatisfaction with the quality of their court-appointed counsel.
Misdemeanor defendants significantly outnumber felony defendants, leading to potential challenges in the criminal justice system A slight increase in the number of misdemeanor defendants requesting appointed counsel could strain resources Therefore, it is crucial for criminal justice officials to closely examine the waiver options available to misdemeanor defendants when preparing their annual budgets.
The waiver decision significantly impacts individual defendants facing misdemeanor charges, as sentencing laws emphasize the importance of a criminal record in determining penalties for future offenses This influence persists even in cases without legal representation Additionally, many defendants are unaware of the long-term consequences of a misdemeanor conviction, a lack of information that is not addressed by waiver procedures.
National data on charging practices, although not comprehensive and limited to certain regions, clearly indicate that charged misdemeanors significantly outnumber felonies, as highlighted by the Bureau of Justice Statistics in the Sourcebook of Criminal Justice.
In 2002, the United States recorded approximately 2.3 million felony charges and over 9 million misdemeanor charges, according to national estimates provided in the 31st edition of "Sourcebook of Criminal Justice Statistics" (2003).
157 See Wayne A Logan, Civil and Criminal Recidivists: Extraterritoriality in Tort and
Crime, 73 U CIN L REv 1609, 1618-20 (2005) (discussing the critical role historically played by prior convictions in sentence enhancements).
158 This is categorically so in the event a valid waiver is secured See Burgett v Texas,