Indigent Defense: Appointed Counsel Does Not Mean Free Counsel
by David M. Reutter
The law firmly provides that every criminal defendant has the constitutional right to the effective assistance of counsel. Appearance of counsel is largely dependent upon one’s financial state. A person of financial means is able to hire an attorney; courts appoint counsel for the poor. As many defendants later learn, an appointment of counsel can leave them indebted for the reasonable costs of attorney fees. The debt leads to devastating impacts for many poor defendants.
Lori Mathes, 56, became entangled with the Iowa criminal justice system in November 2015 after four police officers barged into her home with guns drawn. Police were looking for her ex-husband, who stopped by for a visit. Police charged Mathes with felony drug possession for two grams of marijuana found during the raid. Mathes, who lived off alimony and Social Security disability payments totaling $1,391 per month, wanted to fight the charge because police illegally entered her home.
Because Mathes could not afford to hire an attorney, she applied for the appointment of counsel. The application form stated, “I understand I may be required to repay the state for all or part of my attorney fees and costs.” Two years later, the district attorney agreed to dismiss the charges if Mathes agreed to pay court costs. Reluctantly, Mathes agreed to pay $500.
The court’s final decree, however, left Mathes with sticker shock because the court ordered her to pay nearly $3,000 in attorney fees. Mathes timely appealed, and appellate counsel was appointed. After she lost the appeal, an additional $3,000 fee was assessed for appellate counsel. Alex Kornya, general counsel for Iowa Legal Aid, a nonprofit, assisted Mathes and was successful in getting the second fee reversed.
The methods for calculating attorney fee costs for appointed counsel varies among jurisdictions. Some jurisdictions assess a flat-fee, and others charge by the hour. Dothan, Alabama, charges people “with Class C and D felonies, which commonly include low-level drug charges … a flat fee of $2,000,” The Marshall Project reported. “In rural Anderson County, in East Texas, people are charged $750 to plead out to a third-degree felony. If they choose to go to trial, they must pay $750 a day for legal counsel.”
Where a charge originates affects a cost assessment. Only 13 of Iowa’s 99 counties have a public defender’s office funded by a state salary. The other 86 counties rely on contracted private lawyers. Between 2012 and 2022, Iowa charged an average of $391 per case represented by a public defender. By contrast, rural areas averaged $506 per case. The difference is a result of the rates of contracted attorneys that range from $73 - $83 per hour, depending on the seriousness of the charge, and $25 per hour for paralegal time.
However, the attorney fee assessments are rarely paid, which can result in serious negative consequences. Unpaid fees are often turned over to collection agencies that make harassing phone calls and seek court orders to garnish wages, bank accounts, and tax refunds. Defendants placed on probation may land in jail for failure to pay. Court garnishment orders land on debtors’ credit reports, damaging their credit scores and increasing their interest rates on other debts and can even make finding employment more difficult.
Cindy Ehrenhard owed more than $5,000 in attorney fees for 15 Iowa cases over a two-decade period. Nearly half the fees were related to dismissed cases. Ehrenhard’s failure to pay resulted in an inability to register her car unless she began paying off the debt. In some instances, courts revoke driver’s licenses for failure to pay. From 2012 to 2022, Iowa sent court fee bills totaling $30 million to defendants in cases that resulted in acquittal or dismissal.
Iowa state Rep. Brian Louse (R), who chairs the Justice System Appropriations Subcommittee, said the fees are necessary to hold defendants “accountable a little bit” and to ensure they do not see the appointment of an attorney “as a kind of gift.” Such attitudes, one researcher said, ignore the devastating effects on poor people.
“Imposing fees on individuals for exercising their Constitutional right to free legal counsel representation is not only illogical, it is also cruel,” said Marea German, an author of a 2022 fee report by the National Legal Aid and Defender Association. “It inflicts enduring harm on people who find themselves trapped in lengthy payment plans that carry consequences, which can outlast any jail or probation sentence.”
Source: themarshallproject.org
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