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.