Public Defenders Are Not Always Free

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By Jason Beahm on October 07, 2010 7:17 AM

"...If you cannot afford an attorney, one will be appointed to you..." Most people are familiar with this line. It is the way that police typically explain to a defendant that he is entitled to an attorney. The warning, which comes as part of the Miranda warning, does not necessarily mean that the public defender's assistance will be without cost to the defendant. Surprised to hear that? You're not alone.

According to a report by the Brennan Center for Justice (pdf), states are increasingly imposing fees on indigent criminal defendants, including fees for the public defender. Pro Publica analyzed the report and noted that of the 15 states with the largest prison populations, 13 have provisions to charge defendants fees for exercising their right to counsel. In some of the states, the laws include mandates that specifically bar the court from waiving the fees, even for the poorest of defendants. And in Florida and Ohio, defendants must pay even if they are acquitted of the charges or have them dropped.

The Brennan Center found that, despite the professed need by the states to boost revenue, the imposition of the fees raises "serious constitutional questions." The problem is that the fees arguably discourage individuals from exercising their constitutional right to an attorney. When defendants don't exercise their right to public defenders, they frequently obtain the worst result possible. That's the nature of an adversarial system. In additional, unrepresented defendants lead to wrongful convictions, over-incarceration and huge burdens on the courts, according to the report.

Even more troubling, some of the fees don't even end with the conclusion of the trial. Some states charge incarceration fees, prosecution reimbursement fees, probation fees, parole fees, drug testing fees. Naturally, most of the defendants don't have the money to pay for any of this, and the fees continue to build over time. Making matters even more complex, in many states, when defendants don't pay off their debts, they lose privileges, like voting and driving.

Jim Reams, president of the National District Attorneys Association offered USA TODAY a counterpoint, saying that few criminal defendants serve time and receive probation, so they should be able to get jobs quickly and improve their economic situations.

So who do you find more convincing? Jim Reams or the Brennan Center?

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