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April 12, 2023 HUMAN RIGHTS

The Collision Between Human Rights, Justice, and Money in Public Defense

by Rosalie Joy

The constitutional right to be represented by counsel when accused of a crime in America is not free for everyone. People living in 42 states, plus the District of Columbia, regardless of their inability to afford to hire an attorney, do not have the right to free legal counsel for criminal matters. Surprising? While 80 percent of all people charged with crimes in the United States meet financial thresholds classified as living at or below the poverty level, this does not mean they get a free lawyer in those states. It only means they get an attorney without having to pay for one upfront, but they do have to pay for their representation after the case has been adjudicated.

The practice is called recoupment and has been happening for decades, at least as early as 1973 when the U.S. Supreme Court expanded the right to counsel for misdemeanors and traffic offenses. What followed was an explosion of costs for states and localities in meeting their constitutional obligation to provide counsel to people who could not afford it. Proponents defend recoupment by arguing that it doesn’t stand in the way of the constitutional right to be represented by a lawyer because the lawyer is indeed provided, and the person entitled to one doesn’t have to pay until after the representation has occurred. Despite that, poverty guidelines are generally used to determine eligibility for receiving court-appointed counsel, and meeting that threshold does not preclude policy that requires individuals with poverty-level incomes to have to pay for criminal representation. The policy even applies in some states to people who are found not guilty or whose charges are dismissed.

The constitutional right to be represented by counsel when accused of a crime in America is not free for everyone.

The constitutional right to be represented by counsel when accused of a crime in America is not free for everyone.


There is a vast landscape of questions and concerns that spans across organizations and people who believe the practice is wrong on legal, racial, economic, and human rights grounds. For people who are ordered to pay the bill, their experience moving through this system is rife with humiliation, discrimination, and punishment. Court records and financial data in jurisdictions that have it confirm this, and for thousands of people ordered to pay, the obligation and the penalties for nonpayment last a lifetime.

Starting from the beginning of an accusation that a crime has been committed, people who cannot afford to hire an attorney are charged for applying to the court for appointed counsel. The application requires details on income and expenses, and eligibility is typically determined based on whether those details meet poverty guidelines. The application fee is typically set around $50 and is due at the end of a case unless the court waives the obligation. People struggling for basic human needs like food and shelter have declined to exercise their right to an attorney because they cannot afford the application fee, much less the fees that will be assessed for the actual representation. These policies have a chilling effect on Sixth Amendment rights, triggering concerns about systematically incentivizing people not to exercise their right to counsel.

Aside from the cost of securing a court-appointed attorney, even the process of applying for one results in people representing themselves in courtrooms across the country. Application procedures can mean delays in getting access to counsel, a reality that forces people in jail to go it alone, hoping if they do, they can get out of jail faster. Freedom is everything. It is the key to protecting family, housing, employment, and public benefits, but so is access to counsel. What isn’t always understood or as important in the moment when you stand before the judge is that when the assistance of counsel is declined, critical advice, access to witnesses and evidence, and a fighting chance to avoid a conviction are left to chance and luck. Without counsel, freedom, family, and future are in peril.

When people do exercise their right to counsel, as soon as the attorney is appointed, the charges for that lawyer begin, and, in some places, for the cost of being prosecuted as well. The charges can range between a flat fee and all actual costs associated with the case. They can also be for unrelated but statutorily sanctioned collections that don’t have any nexus to the case. All will be added to the individual’s ledger of what will be billed when the case is over.

When someone is able to hire a private attorney, if they fail to pay that bill, they do not risk going to jail because of it. For people who live at or below the poverty level, they do. Equal protection under the law does not apply in this instance. Arrest, jail, probation, driver’s license suspension, and income tax refund interception apply only to those who cannot afford counsel. Repeated court appearances are required, and the outstanding debt can grow beyond double and triple balances due. The court may be under pressure and preoccupied with generating revenue to finance operations. And if the judge believes you willfully ignored or refused to pay the debt, you can be incarcerated. The defense attorney, if still on the case, will make all the necessary legal arguments about the law and the constitution, including the prohibition against debtors’ prisons, but the decision to incarcerate is subject to the discretion of a judge. Most judges likely have no formula to guide a fully informed decision about what to do. Instead, they likely have an overloaded docket and exhaustion from hearing from debtors who continually fail to satisfy their debt. They may not have any lived experience with punishment that poverty itself and the color of your skin breed. Sure enough, they may also be compassionate and forgiving. Some people are given more time to pay before facing jail again, but that opportunity also comes with a price tag. In jurisdictions that allow it, you can be charged for setting up a payment plan to begin making payments toward all the other debt that was not feasible to pay when it was assessed. The reality is whether you go to jail or not, the future holds more punishment in the form of sanctions that increase the debt, over and over and over again until you either pay up or die.

The depth of this problem has cultivated more attention as the justice community looks for solutions to end mass incarceration and dismantle the structural and systemic racism that thrives through policy disproportionately impacting Black and brown people. Institutions like the National Legal Aid & Defender Association, the Fines and Fees Justice Center, and the Brennan Center for Justice have examined the evidence and issued findings that illuminate distortions of the rule of law that amount to violations of the constitutional right to counsel.

The analysis shows that the right to effective assistance of counsel is being marginalized through recoupment practices that create conflicts of interest for defense attorneys who rely on recoupment to keep their jobs. Even though the right to counsel should not be contingent on money, the defense system gets caught between a rock and a hard place when their ability to fight for clients is indeed contingent in part on revenue generated from recoupment that supports their operations, including salaries. How does an attorney foster trust and make decisions solely in the best interests of his client and, at the same time, rely on the power of the court to sanction his client until the bill is paid for his counsel?

The analysis also shows that procedures used to collect the money are not in line with what the Supreme Court has ruled about the constitutionality of recoupment. The Court has held that states have a legitimate interest in recouping the cost of counsel but only under certain circumstances. Courts are not supposed to charge people unless they have the ability to pay without causing a manifest hardship. Ability-to-pay hearings are supposed to be conducted to consider factors that support or negate the ability to pay and, logically flowing from that, only be required to pay amounts that are feasible. However, when the ability-to-pay hearing is substituted with a form the client signs indicating they can pay, without any scrutiny from the court, the rule of law is as least distorted, if not completely violated. 

In addition to the legal infirmities discovered through the research, the evidence also points to abuse, absurdity, and futility in practices that pawn the obligation to provide counsel onto the backs of disproportionately policed and punished Black and brown people. Collection practices include referral to collection agencies and credit reporting, court and probation-supervised payment programs that add more fees to debts owed, driver’s license suspensions for unpaid debt, interception of income tax refunds, cold calls to debtors asking for government economic disaster relief checks to be handed over, and, finally, arrest and incarceration for nonpayment. Every study shows rates of collection at significantly low levels and the cost of collecting enormous. Systems have not been identified that track or evaluate that cost against what little is actually being collected, but data pieced together by the Brennan Center for Justice in 2019 revealed as much as 115 percent of the amounts charged by the court were spent in trying to collect them. As absurd as this is, it is largely opaque to courts and policymakers who never see the cost figures and continue legislating more fees and spending more money trying to collect it. Meanwhile, policies that harass and punish people for not paying continue to strengthen the foothold of systemic and structural racism.

For all these reasons, deeper analysis and understanding are urged by the justice community. Eight states do not charge impoverished people for their right to counsel and are meeting their obligations in other ways. Alternative solutions are already developed in those states and can be a road map to jumpstart reform efforts. Until then, the American Bar Association Working Group on Building Public Trust in the American Justice System has developed Ten Guidelines on Court Fines and Fees in an effort to ensure that poor people are not disproportionately impacted because of their poverty. The guidelines call for clear and consistent standards in evaluating the ability to pay, and when a person cannot afford a lawyer, “counsel must be provided to them for free.” The guidelines also call for publicly available financial data, a measure that can drive reform for systems focused on the economics of policy decisions. For those focused on equal justice, reform is welcomed, no matter the motivation.

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Rosalie Joy

Former Chief, Public Defender's Office, Atlanta, GA

Rosalie Joy has worked in public defense since 1988, first as a frontline public defender and then as chief of the Public Defender’s Office in Atlanta, Georgia, from 2010–17. Her work in Atlanta brought national attention to issues of concern in public defense, earning her the Gideon’s Promise Foot Soldier Award in 2018.