Gideon at 50:
A Three-Part Examination of
Indigent Defense in America
Part 2 — Redefining Indigence:
Financial Eligibility Guidelines for Assigned Counsel

SIXTH AMENDMENT: IN ALL CRIMINAL PROSECUTIONS, THE ACCUSED SHALL
ENJOY THE RIGHT TO A SPEEDY AND PUBLIC TRIAL, BY AN IMPARTIAL JURY
OF THE STATE AND DISTRICT WHEREIN THE CRIME SHALL HAVE BEEN
COMMITTED, WHICH DISTRICT SHALL HAVE BEEN PREVIOUSLY
ASCERTAINED BY LAW, AND TO BE INFORMED OF THE NATURE AND CAUSE
OF THE ACCUSATION; TO BE CONFRONTED WITH THE WITNESSES AGAINST
HIM; TO HAVE COMPULSORY PROCESS FOR OBTAINING WITNESSES IN HIS
FAVOR, AND TO HAVE THE ASSISTANCE OF COUNSEL FOR HIS DEFENCE.

NATIONAL ASSOCIATION OF C RIMINAL DEFENSE LAWYERS
March 2014

Supported by a grant from the Foundation for Criminal Justice.

COPYRIGHT © 2014 N ATIONAL ASSOCIATION OF C RIMINAL D EFENSE LAWYERS
This report is subject to a Creative Commons Attribution-Noncommercial-Nonderivative
Work license (see www.creativecommons.org). It may be reproduced, provided that no
charge is imposed, and the National Association of Criminal Defense Lawyers is
acknowledged as the original publisher and the copyright holder. For any other form of
reproduction, please contact NACDL for permission.

NATIONAL ASSOCIATION OF
CRIMINAL D EFENSE LAWYERS

1660 L Street NW, 12th Floor
Washington, DC 20036
Phone: 202-872-8600
www.nacdl.org

Gideon at 50:
A Three-Part Examination of Indigent Defense in America

PART 2

Redefining Indigence:
Financial Eligibility Guidelines
for Assigned Counsel
A 50-State Survey of Financial Eligibility
Guidelines for Assigned Counsel

BY
JOHN P. GROSS
Indigent Defense Counsel
National Association of
Criminal Defense Lawyers

JERRY J. COX
President, NACDL
Mount Vernon, KY

GERALD B. LEFCOURT

NORMAN L. REIMER
Executive Director, NACDL
Washington, DC

KYLE O’DOWD
Associate Executive Director
For Policy, NACDL
Washington, DC

President, FCJ
New York, NY

TABLE OF CONTENTS

ABOUT THE NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS . . .3
ABOUT THE FOUNDATION FOR CRIMINAL JUSTICE . . . . . . . . . . . . . . . . . . . .4

2

ACKNOWLEDGEMENTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .5
FOREWORD . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .6
REDEFINING INDIGENCE FINANCIAL ELIGIBILITY
GUIDELINES FOR ASSIGNED COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .7
WHO IS TOO POOR TO HIRE A LAWYER? . . . . . . . . . . . . . . . . . . . . . . . . . . . .9
ELIGILIBILITY FOR ASSIGNED COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Substantial Hardship . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
Federal Poverty Guidelines . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11
The Ability to Post Bond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .14
Public Benefits as Income . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
The Marginally Indigent . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .15
Application Fees, Contributions And Reimbursement . . . . . . . . . . . . . . .16
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
ENDNOTES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
MAP OF INCOME ELIGIBILITY GUIDELINES FOR
ASSIGNED COUNSEL IN THE 50 STATES . . . . . . . . . . . . . . . . . . . . . . . . .22-23
NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
50-STATE SURVEY OF FINANCIAL ELIGIBILITY
GUIDELINES FOR ASSIGNED COUNSEL . . . . . . . . . . . . . . . . . . . . . . . . . . . .24

Gideon at 50: A Three-Part Examination of Indigent Defense in America

ABOUT THE NATIONAL ASSOCIATION
OF CRIMINAL DEFENSE LAWYERS

T

he National Association of Criminal Defense Lawyers (NACDL) is the
preeminent organization in the United States advancing the goal of the criminal
defense bar to ensure justice and due process for persons charged with a crime
or wrongdoing. NACDL’s core mission is to: Ensure justice and due process for persons
accused of crime … Foster the integrity, independence and expertise of the criminal
defense profession … Promote the proper and fair administration of criminal justice.

Founded in 1958, NACDL has a rich history of promoting education and reform
through steadfast support of America’s criminal defense bar, amicus curiae advocacy,
and myriad projects designed to safeguard due process rights and promote a rational and
humane criminal justice system. NACDL’s approximately 9,500 direct members —
and more than 90 state, local and international affiliates with an additional 40,000
members — include private criminal defense lawyers, public defenders, active U.S.
military defense counsel, and law professors committed to preserving fairness in
America’s criminal justice system. Representing thousands of criminal defense
attorneys who know firsthand the inadequacies of the current system, NACDL is
recognized domestically and internationally for its expertise on criminal justice policies
and best practices.

The research and publication of this report was made possible through the support of
the Foundation for Criminal Justice and its contributors, including individuals, the Open
Society Foundation and the Ford Foundation.
For more information contact:

NATIONAL ASSOCIATION OF
CRIMINAL D EFENSE LAWYERS

1660 L Street NW, 12th Floor
Washington, DC 20036
202-872-8600
www.nacdl.org

This publication is available online at
http://www.nacdl.org/gideonat50/

Part 2 — Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel

3

ABOUT THE FOUNDATION
FOR CRIMINAL JUSTICE

T
4

he Foundation for Criminal Justice (FCJ) is organized to preserve and promote
the core values of America’s criminal justice system guaranteed by the
Constitution — among them due process, freedom from unreasonable search and
seizure, fair sentencing, and access to effective counsel. The FCJ pursues this goal by
seeking grants and supporting programs to educate the public and the legal profession
on the role of these rights and values in a free society and assist in their preservation
throughout the United States and abroad.

The Foundation is incorporated in the District of Columbia as a non-profit, 501(c)(3)
corporation. All contributions to the Foundation are tax-deductible. The affairs of the
Foundation are managed by a Board of Trustees that possesses and exercises all powers
granted to the Foundation under the DC Non-Profit Foundation Act, the Foundation’s
own Articles of Incorporation and its Bylaws.
For more information contact:

F OUNDATION

FOR

CRIMINAL JUSTICE

1660 L Street NW, 12th Floor
Washington, DC 20036
202-872-8600
www.nacdl.org/foundation

Gideon at 50: A Three-Part Examination of Indigent Defense in America

ACKNOWLEDGEMENTS

T

his report was prepared by John P. Gross, Indigent Defense Counsel for the
National Association of Criminal Defense Lawyers. Portions of this report
were previously published in the Washington and Lee Law Review.1

The author would like to thank the following NACDL staff for their careful editing
and helpful suggestions: Norman Reimer, Executive Director; Kyle O’Dowd,
Associate Executive Director for Policy; and Isaac Kramer, Public Affairs and
Communications Assistant. The author would also like to thank NACDL law clerk
Michelle Lim for her legal research on income eligibility guidelines for assigned
counsel. The author wishes to acknowledge Cathy Zlomek, NACDL Art Director,
for the design of the report.

The author also wishes to thank the members of NACDL’s Indigent Defense
Committee for their support of this project.

Part 2 — Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel

5

5

FOREWORD

T
6

he denial of counsel to those too poor to hire a lawyer based on arbitrary income
eligibility guidelines undermines the central tenet of our criminal justice system: that
every defendant should stand equal before the law. The idea that the poor and the
wealthy should have equal access to justice is deeply imbedded in our notion of due process
and fundamental fairness. Nearly 50 years ago, Justice Black referenced the following
passage from Leviticus when ruling that an indigent defendant must be provided with a trial
transcript on appeal: You shall not render an unjust judgment; you shall not be partial to the
poor or defer to the great: with justice you shall judge your neighbor. Leviticus, c. 19, v. 15.

Today, we take it for granted that defendants who are too poor to hire an attorney will be
provided with counsel free of charge. Sadly, as this 50-State Survey of Financial Eligibility
Guidelines for Assigned Counsel demonstrates, that is not the case. Not only do states restrict access to counsel through the use of unrealistic income eligibility guidelines, but they
impose various fees for providing representation.

In an effort to avoid the constitutional mandate to provide counsel to those too poor to
hire an attorney, states have redefined poverty. Instead of a realistic assessment of a defendant’s financial resources and the actual costs associated with mounting an adequate
defense, most states decide who is too poor to hire a lawyer by referencing the Federal
Poverty Guidelines. The result is that defendants who receive needs-based public assistance, unemployment, disability and veteran’s benefits are often deemed ineligible for
assigned counsel.

Even when defendants are deemed eligible for assigned counsel, states impose various fees
for representation. These fees can apply even in cases where a defendant is acquitted. Most
states also attempt to recoup at least some of the costs of representation from a defendant.
Defendants are not simply “indigent” or able to afford an attorney but are now classified
as “marginally indigent.” These defendants are expected to pay what little they have toward
the cost of their defense both during the pendency of their case and potentially for years
after the case has ended.

NACDL’s 50-State Survey of Financial Eligibility Guidelines for Assigned Counsel exposes
a serious threat to the noble ideal of Gideon. This report documents how states use unrealistic and arbitrary guidelines to make decisions about who is eligible for assigned counsel. The
report also calls into question the continued reliance on the Federal Poverty Guidelines when
making eligibility determinations. It is a resource for the defense bar, assigned counsel plan
administrators, judges and legislators. The information contained in this survey shows that
states need to reevaluate how they make eligibility determinations for assigned counsel in
order to ensure that those who are too poor to hire a lawyer stand equal before the law.

Jerry J. Cox

President, NACDL

Gideon at 50: A Three-Part Examination of Indigent Defense in America

REDEFINING INDIGENCE
FINANCIAL ELIGIBILITY GUIDELINES
FOR ASSIGNED COUNSEL
Reason and reflection require us to recognize that in our adversary system of criminal justice, any person haled into court,
who is too poor to hire a lawyer, cannot be assured a fair trial
unless counsel is provided for him. This seems to us to be an
obvious truth.

Gideon v. Wainwright, 372 U.S. 335, 344 (1963)
A defendant in a criminal case who is just above the poverty
line separating the indigent from the nonindigent must borrow
money, sell off his meager assets, or call upon his family or
friends in order to hire a lawyer.

T

Fuller v. Oregon, 417 U.S. 40, 53-54 (1974)

Introduction

Fifty years ago the Supreme Court announced in Gideon v. Wainwright that any
person who is “too poor to hire a lawyer” must be provided with counsel. The Court
pointed out that “our state and national constitutions and laws have laid great
emphasis on procedural and substantive safeguards designed to assure fair trials before
impartial tribunals in which every defendant stands equal before the law.” The Court reasoned
that this “noble ideal cannot be realized if the poor man charged with a crime has to face his
accusers without a lawyer to assist him.”
Part 2 — Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel

7

States have struggled to create indigent defense
delivery systems that live up to the noble ideal
that every defendant should stand equal before
the law. Chronic underfunding has led to
excessive caseloads which has in turn raised
questions about the effectiveness of the legal
representation provided to those too poor to hire
a lawyer. While the effectiveness of the various
indigent defense delivery systems across the
country has repeatedly been called into question,
what is seldom questioned is how states
determine who is indigent.2 For presumptively

8
While states have various
definitions of “indigency,”
the majority of states rely
on the Federal Poverty
Guidelines to determine
eligibility for
assigned counsel.
innocent defendants facing the powerful legal
machinery of the state, the importance of this
determination cannot be overstated.
This 50-State Survey of Financial
Eligibility Guidelines for Assigned
Counsel3 documents how states decide
who is “too poor” to hire a lawyer. The
survey looks at how states define
“indigency” and whether or not that
definition is consistent with ABA
standards for providing defense services.
It identifies which states rely on the
Federal Poverty Guidelines when
determining eligibility for assigned
counsel, and explains the origin of the

Federal Poverty Guidelines and how they cannot
accurately predict who is “too poor” to hire a lawyer.
The survey then looks at the fees and costs imposed
on supposedly indigent defendants who are assigned
counsel. These include application fees, payable at
the time a request for counsel is made, and
reimbursement fees, payable at the conclusion of the
case or over time.
While states have various definitions of
“indigency,” the majority of states rely on the
Federal Poverty Guidelines to determine
eligibility for assigned counsel. Many states also
consider forms of public assistance as income that
defendants can presumably use to hire an attorney,
and a few states consider a defendant’s ability to
post bond when making eligibility determinations.
This results in restrictive eligibility criteria that
deny representation to defendants who are too
poor to hire a lawyer. Defendants who are deemed
ineligible for assigned counsel but who lack
financial resources to hire an attorney are forced to
waive their right to counsel.
Those defendants fortunate enough to qualify for
assigned counsel are often forced to reimburse the
state for the cost of representation. These
“marginally indigent” defendants have to
contribute whatever financial resources they have

The term “indigent” is itself a
misnomer. . . . courts
have never required that a
defendant be wholly without
means before they are
eligible for assigned counsel.

Gideon at 50: A Three-Part Examination of Indigent Defense in America

to their defense, with the end result being that
they become truly indigent by the time their case
is resolved. The requirement that marginally
indigent defendants reimburse the state for the
cost of their defense also discourages them from
exercising their right to counsel.

Who Is Too Poor to
Hire a Lawyer?

The Supreme Court has devoted scant attention
to the issue of who is “indigent,” although it
should be noted that the term “indigent” is itself
a misnomer. While those defendants who are “too
poor to hire a lawyer” are typically referred to as
“indigent,” courts have never required that a
defendant be wholly without means before they
are eligible for assigned counsel.4 In his letter of
transmittal to President John F. Kennedy,
accompanying the proposed legislation that
would become the Federal Criminal Justice Act
of 1964, Attorney General Robert F. Kennedy
explained that “the term indigency is avoided
because of its implication that only an accused
who is destitute may need appointed counsel or
services.”5 In Gideon, the Court simply stated that
those defendants who were “too poor to hire a
lawyer” were entitled to counsel. No guidelines
were proposed as to how a trial court would make
the determination that a defendant was unable to
afford counsel.
The year after Gideon was decided, the Court
ruled in Hardy v. United States6 that an indigent
defendant was entitled to a free copy of a
complete trial transcript on appeal.7 In Justice
Goldberg’s concurring opinion in Hardy, he
included a footnote wherein he attempts to define
“indigence”:

Justice cannot be equal
where, simply as a result of
his poverty, a defendant is
denied the opportunity to
participate meaningfully in a
judicial proceeding in which
his liberty is at stake.”

9
Indigence “must be conceived as a
relative concept. An impoverished
accused is not necessarily one totally
devoid of means.” An accused must be
deemed indigent when “at any stage of
the proceedings [his] lack of means…
substantially inhibits or prevents the
proper assertion of a [particular] right or
claim of right.” Indigence must be defined
with reference to the particular right
asserted. Thus, the fact that a defendant
may be able to muster enough resources,
of his own or of a friend or relative, to
obtain bail does not in itself establish his
nonindigence for the purpose of
purchasing a complete trial transcript or
retaining a lawyer.”8
The conception of indigency as a “relative
concept” linked to the assertion of a particular
right is consistent with the “noble ideal” that
every defendant stands equal before the law.
Defendants need not be “totally devoid of
means,” nor must they be incapable of asserting
a right; it is sufficient that their lack of financial
resources “substantially inhibits” their defense.

Part 2 — Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel

10

This line of reasoning is reflected in the Court’s
decision in Ake v. Oklahoma9 two decades later.
In Ake, the Court ruled that an indigent defendant
was entitled to a psychiatrist when he has made a
preliminary showing that his sanity at the time of
the offense is likely to be a significant factor at
trial.10 The Court pointed out that it “has long
recognized that when a State brings its judicial
power to bear on an indigent defendant in a
criminal proceeding, it must take steps to assure
that the defendant has a fair opportunity to
present his defense.”11 While Gideon references
an “obvious truth,”12 Ake references the
“elementary principle” grounded in “fundamental
fairness” and derived from the belief “that justice
cannot be equal where, simply as a result of his
poverty, a defendant is denied the opportunity to
participate meaningfully in a judicial proceeding
in which his liberty is at stake.”13

States have attempted to
contain costs by reducing the
number of defendants who
are financially eligible for
assigned counsel.

The ABA Standards for Providing Defense
Services reflect this reasoning and state that
counsel should be provided to those who are
“financially unable to obtain adequate
representation without substantial hardship.”14 A
defendant need not be totally without means in
order to be assigned counsel, instead, as a

practical matter, they must be unable to retain
qualified counsel without suffering substantial
hardship. The standard recognizes that there will
often be situations where a defendant has some
financial resources but not adequate resources to
ensure effective representation. Despite this fact,
less than a third of the states consider whether
defendants will suffer substantial hardship if they
are denied assigned counsel when making
eligibility determinations.15

Eligibility for Assigned Counsel

Following the Supreme Court’s decision in
Gideon, states began to devise systems for
providing counsel to indigent defendants charged
with crimes. Determining who was “too poor to
hire a lawyer” was something left to the individual
states and, within the states, typically left to the
discretion of the trial court. At first, it appears that
many states spent little time making eligibility
determinations. A defendant was too poor to hire
a lawyer if he simply said that he was.16
The assumption was that anyone charged with a
crime would hire the best attorney she could
afford. The Supreme Court actually made this
same assumption in Gideon when it noted that
“there are few defendants charged with crime, few
indeed, who fail to hire the best lawyers they can
get to prepare and present their defenses.”17 But
as the cost of providing indigent defense services
has risen, states have attempted to contain costs
by reducing the number of defendants who are financially eligible for assigned counsel.18

Substantial Hardship

Some states have incorporated language from the
American Bar Association’s “Standards for
Providing Defense Services,” which recommend
providing counsel “to persons who are financially

Gideon at 50: A Three-Part Examination of Indigent Defense in America

unable to obtain adequate representation without
substantial hardship.”19 These states define indigency as not simply the inability to hire an attorney, but rather the inability to hire an attorney
without “substantial hardship.” Alabama, Florida,
Hawaii, Indiana, Louisiana, Maryland, Michigan,
Montana, Nevada, New Mexico and Oregon all
use “substantial hardship” as a factor in eligibility determinations.
Several other states explicitly mention “economic
necessities” or expenses which they categorize as
“necessities.” In Alaska, an “indigent person” is
one who cannot afford an attorney “without depriving the party or the party’s dependents of
food, clothing, or shelter.” In Delaware, a defendant is considered “indigent” when he is unable to
retain legal counsel without impairing his financial ability to provide the “economic necessities
of life for himself and his family.” In Nebraska,
defendants are indigent if they are unable to retain
counsel “without prejudicing one’s financial ability to provide economic necessities for one’s self
or one’s family.” Rhode Island defines an “indigent defendant” as someone “who after payment
of necessary expenses for food, shelter and medical care” cannot afford to hire counsel. And in
Utah, a defendant is indigent if she lacks the
means to pay for legal counsel “without depriving
the person or the family of that person of food,
shelter, clothing and other necessities.”

have contributed to their adoption by the majority
of states over the last 50 years. The first is that
their development coincides with the Supreme
Court’s decision in Gideon as well as the “War on
Poverty” announced by the Johnson
Administration in January 1964.20 Second, the
Legal Services Corporation (LSC) was created by
the Economic Opportunity Act of 1964 and was
charged with providing civil legal services to the
nation’s poor.21 In determining eligibility
guidelines for their services, the LSC decided to
use 125 percent of the Federal Poverty
Guidelines.22 Over time, the Federal Poverty
Guidelines were adopted by a variety of federal
agencies as a method of determining eligibility for
benefits. As costs associated with providing
indigent defense rose, states turned to eligibility
guidelines to control those costs. In searching for
some objective criteria to use when making
eligibility determinations, states began to adopt
the Federal Poverty Guidelines.

As costs associated
with providing
indigent defense rose,
states turned to
eligibility guidelines
to control those costs.

Federal Poverty Guidelines

The majority of states currently use some multiple
of the Federal Poverty Guidelines to determine if
a defendant is “indigent” and therefore eligible for
assigned counsel. While it is unclear how the
Federal Poverty Guidelines became intertwined
with eligibility determinations for assigned
counsel, there are a number of factors which may

The Federal Poverty Guidelines were developed
by Mollie Orshansky, an economist working for
the Social Security Administration in the early
1960s.23 The Guidelines were never meant to be

Part 2 — Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel

11

money that could be spent on food in order to
ensure an adequate level of nutrition, and
multiplied those by three to arrive at the poverty
thresholds.29 Over the years, the Federal Poverty
Guidelines have been updated annually based
solely on the Consumer Price Index.

The Guidelines are of
limited value because
they are based solely
on the cost of food.

12

a general measure of poverty;24 they were only to
be used to assess the relative risks of low
economic status.25 The U.S. Census Bureau has
stated that “the official poverty measure should
be interpreted as a statistical yardstick rather than
a complete description of what people and
families need to live.”26
The Guidelines are of limited value because they
are based solely on the cost of food.27 Orshansky
used the data from the Department of
Agriculture’s “Household Food Consumption
Survey,” which indicated that Americans spent
about one third of their household income on
food.28 She then used the dollar amounts from the
Department of Agriculture’s “Economy Food
Plan,” which estimated the minimum amount of

The Guidelines do not take into account the cost of
housing, child care, health care, transportation or
other necessary expenses. Tied to the assumption
that one third of household income will be spent
on food and updated based solely on the
Consumer Price Index, the Guidelines do not take
into account relative changes in household
budgets over the last 50 years. The Guidelines also
don’t account for specific family composition or
geographic location; “households” are simply
made up of a certain number of people anywhere
within the continental United States.
Despite their limitations, the Federal Poverty
Guidelines, or percentage multiples of them, are
used as eligibility criteria for a wide range of federal
programs. To be eligible for the Department of
Agriculture’s Women, Infants and Children
Program (WIC), which provides food, nutrition
education and health screening to pregnant women
and children, household income must be below 185
percent of the federal poverty guidelines.30 To be
eligible for the Supplemental Nutritional Assistance

Persons in Family /
Household

2014 Federal Poverty
Guidelines

150 Percent of
Guidelines

1

$11,670

$17,505

2

$15,730

$23,595

3

$19,790

$29,685

4

$23,850

$35,775

5

$27,910

$41,865

6

$31,970

$47,955

Gideon at 50: A Three-Part Examination of Indigent Defense in America

Program (SNAP), formerly the Food Stamp
Program, household income must be below 130
percent of the Federal Poverty Guidelines.31 The
Department of Agriculture’s National School
Lunch Program provides free lunches to children
from families with incomes at or below 130 percent
of the Federal Poverty Guidelines; children from
families with household incomes between 130
percent and 185 percent of the federal poverty
guidelines are also eligible for reduced-price meals
and cannot be charged more than 40 cents.32
To be eligible for the Department of Health and
Human Services’ Low Income Home Energy
Assistance Program (LIHEAP), which provides
assistance in managing costs associated with energy
bills and weatherization, household income must
be below 150 percent of the Federal Poverty
Guidelines.33 The Department of Health and
Human Services Children’s Health Insurance
Program (CHIPS) serves uninsured children up to
age 19 in families with incomes too high to qualify
them for Medicaid. While states have broad
discretion in setting income eligibility for CHIPS,
46 states and the District of Columbia cover
children in families with income up to or above 200
percent of the Federal Poverty Guidelines and 24
of these states offer coverage to children in families
with income at 250% of the Federal Poverty
Guidelines or higher.34
Many states have chosen to define eligibility for
assigned counsel in criminal proceedings based on
a multiple of the Federal Poverty Guidelines.
Viewed in isolation, that decision might appear
reasonable. However, when compared to eligibility guidelines for federal assistance programs like
WIC, SNAP, School Lunches, LIHEAP and
CHIPS, their use to determine eligibility for assigned counsel is patently unreasonable. This is
particularly true in light of the unrealistically low
multiples utilized by many states.

Georgia defines an indigent person as a person
charged with a misdemeanor who earns less than
100 percent of the Federal Poverty Guidelines. In
Maine, defendants are eligible for assigned counsel if their income is below 110 percent of the
Federal Poverty Guidelines. In Missouri, a defendant may be considered indigent if his or her
gross pay and other sources of income do not exceed the Federal Poverty Guidelines. In Virginia,
counsel is appointed if a defendant’s available
funds are equal to or below 125 percent of the
Federal Poverty Guidelines.
The result is that in Georgia, Maine, Missouri and
Virginia, defendants earning less than $15,000 a

A defendant making just above
125 percent of the Federal Poverty
Guidelines receives federal
assistance to pay for food, heat and
medical care for their children but is
somehow not regarded by some
states as too poor to hire a lawyer.

year may be ineligible to receive state funded representation because they have an income slightly
above 125 percent of the federal poverty guidelines but are eligible for federal assistance
through WIC, SNAP, the School Lunch Program,
LIHEAPS and CHIPS.

Part 2 — Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel

13

lawyers typically demand a retainer from a client
before they undertake representation. It is unreasonable to expect defendants who make slightly
more than the Federal Poverty Guidelines over the
course of a year to be able to pay a lump sum retainer in order to retain counsel.36

A defendant should not
be compelled to choose
between posting bond

14

and retaining counsel.
A defendant making just above 125 percent of the
Federal Poverty Guidelines receives federal assistance to pay for food, heat and medical care for
their children but is somehow not regarded by
some states as too poor to hire a lawyer.
Another problem with comparing a defendant’s
yearly income with the Federal Poverty Guidelines
is the underlying assumption that, at the time the
defendant is arrested, he or she would have the difference between his or her yearly income and the
Federal Poverty Guidelines available to hire counsel. Whatever discretionary income a defendant
who is earning slightly more than the Federal
Poverty Guidelines might have at some point during the year, it is significantly less than the amount
he will have over the course of an entire year.35 In
addition, for practical reasons, criminal defense

The Ability to Post Bond

The ABA Standards for Providing Defense
Services state that assigned counsel should not be
denied “because bond has been or can be
posted.”37 A defendant should not be compelled
to choose between posting bond and retaining
counsel. The right to bail and the right to counsel
are independent of one another, and the standard
recognizes defendants should not be denied
assigned counsel because they have spent their
limited financial resources to obtain pretrial
release. While just over one third of the states
have adopted standards which make it clear that
the posting of bond is not a justification for
denying a defendant assigned counsel, one fifth
of the states have standards that explicitly identify
the posting of bond as a consideration when
determining eligibility for assigned counsel.
Florida considers whether a defendant “made bail
in excess of $5,000 or posted bond in any
amount” when making a determination regarding
indigency. Missouri requires the trial court to
consider “all the circumstances of the case,”
which includes the “ability to make bond.” New

State

Potentially Eligible

Presumed Ineligible

Georgia

100% to 150%

Above 150%

Maine

Below 100%

Above 110%

Missouri

Below 100%

Above 100%

Virginia

Below 125%

Above 125%

Gideon at 50: A Three-Part Examination of Indigent Defense in America

Jersey considers the “ability of the defendant to
make bail and the source of the bail posted,” and
West Virginia considers whether a defendant “has
posted a cash bond for bail or has obtained release
on bond… and the amount and source of the
money provided for such bond.” Using the fact
that a defendant has made bail to deny him
appointed counsel has the potential to force the
defendant to choose between his liberty and his
right to an attorney.

Public Benefits as Income

While some states find defendants who are already receiving certain needs-based federal benefits automatically eligible for assigned counsel,
other states actually consider these benefits as
“income” when making eligibility determinations. Courts in Arizona, Arkansas, Delaware,
Louisiana, Nebraska, South Dakota and Utah
have held that forms of public assistance should
be considered “income” when determining financial eligibility. Other states like Florida, Maine,
Massachusetts, Missouri, New Hampshire, New
Jersey, Ohio, Oregon, Virginia and Washington
have statutory definitions of indigency that categorize needs-based benefits as “income”
The result is that a defendant can be receiving
federally funded public assistance and be ineligible for assigned counsel. Even worse, those federal benefits, which are designed to meet basic
needs, are viewed as income which can be used to
retain counsel. This level of income is insufficient
to retain private counsel but even if it were, it is
unlikely that a defendant would choose to spend
her limited financial resources on counsel rather
than the necessities of life such as food and shelter. The categorization of public benefits as income artificially inflates the amount of money a
defendant has to retain counsel.

The Marginally Indigent

The clearest evidence that states have unjustly restrictive eligibility guidelines for assigned counsel is the designation of “marginally indigent
defendants” or defendants who are “indigent but
able to contribute.” States have created a category
of defendants who they don’t regard as “indigent”
and therefore entitled to assigned counsel, but
who they acknowledge are still “too poor to hire
a lawyer.” These defendants are required to sell
off their meager assets to help offset the cost of
assigned counsel.
Florida defines a “partially indigent” defendant as
“a person unable to pay more than a portion of the
fee charged by an attorney, including costs of investigation, without substantial hardship to the person or the person’s family.” Ohio defines
“marginally indigent” defendants as those with a
“total monthly gross income that is less than 187.5
percent of the current federally established poverty
levels, pursuant to the Federal Poverty
Guidelines.” In Kansas, a defendant is partially indigent “if the defendant’s combined household income and liquid assets are greater than the
defendant’s reasonable and necessary living expenses but less than the sum of the defendant’s reasonable and necessary living expenses plus the
anticipated cost of private legal representation.”

The result is that a
defendant can be
receiving federally funded
public assistance and be
ineligible for assigned

Part 2 — Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel

counsel.

15

16

Maine does a similar calculation and then requires
a defendant to make periodic payments based on
the amount by which income exceeds necessary
expenses to reimburse the state for the cost of assigned counsel. Massachusetts categorizes defendants who have an income greater than 125% but
less than 250% of the Federal Poverty Guidelines
as “indigent but able to contribute.” Trial courts in
Minnesota determine whether or not a defendant
is able to make “partial payment,” while courts in
Missouri can require a “limited cash contribution.”
Courts in North Carolina have found that “partially
indigent” defendants should contribute whatever
they can to the cost of their representation.
The result is that many defendants who are “marginally indigent” are required to become “indigent” before counsel will be appointed. States
refuse to acknowledge that these defendants are
too poor to hire a lawyer and instead have created
a new category of criminal defendants: indigent
but able to contribute. These defendants are required to sell off whatever assets they own and to
empty their savings accounts to offset the cost of
assigned counsel. The end result is that the states
make sure that those defendants who are marginally indigent at the time they are arrested will be
completely destitute by the time the case ends,

States make sure that those
defendants who are
marginally indigent at the
time they are arrested will
be completely destitute by
the time the case ends, even
if it ends in a dismissal.

even if it ends in a dismissal. It makes little financial sense for the state to require a “marginally indigent” defendant to exhaust their financial
resources when the end result will be that the state
will have to provide some form of public assistance to that same defendant.

Application Fees, Contributions
And Reimbursement

Almost a decade after Gideon, the Supreme Court
found a law that required a defendant to
reimburse the state for the costs of representation
to be unconstitutional. In James v. Strange,38 a
Kansas statute that required a defendant to pay
the costs of representation within 60 days of
receiving notice of the amount owed, or else the
amount would become a civil judgment, was held
to violate due process because a defendant was
barred from asserting the ordinary civil
protections afforded other debtors. While the
Court recognized a state’s asserted interests in
recovering the costs associated with providing a
defense, the Court stated that such laws “need not
blight in such discriminatory fashion the hopes of
indigents for self-sufficiency and self-respect.”39
The Court went on to find that the statute at issue
“embodies elements of punitiveness and
discrimination which violate the rights of citizens
to equal treatment under the law.”40
Two years later, the Court validated a statute that
required a defendant to reimburse the state for the
cost of representation in Fuller v. Oregon.41
Unlike the statute at issue in James, the statute in
Fuller afforded the defendant all the protections
of civil judgment debtors. In upholding the
statute, the Court observed that the dividing line
between those able to afford representation and
those deemed to be “indigent” created a system
where a defendant who was barely able to afford
counsel would be at a disadvantage.

Gideon at 50: A Three-Part Examination of Indigent Defense in America

We live in a society where the distribution
of legal assistance, like the distribution of
all goods and services, is generally
regulated by the dynamics of private
enterprise. A defendant in a criminal case
who is just above the poverty line
separating the indigent from the
nonindigent must borrow money, sell off
his meager assets, or call upon his family
or friends in order to hire a lawyer.42
The result is a disproportionate financial burden
on those defendants who have limited financial
resources. Those classified as “indigent” receive
state-funded representation, the wealthy are able
to use disposable income to retain counsel, but
the working poor are expected to “borrow
money” and sell off their “meager assets” when
they need legal representation.

The working poor are expected to
“borrow money” and sell off their
“meager assets” when they need
legal representation.

While the Supreme Court has said that indigent
defendants may be required to make contributions
toward the costs of representation, the ABA
Standards for Providing Defense Services limits
the obligation to reimburse the state for the costs
of providing counsel to instances of fraud in
obtaining the determination of eligibility and
requires that there be procedural safeguards in

State

Statute

Assigned Counsel Fees

Arizona

AZ ST § 9-499.09

$25 Administration Assessment Fee (maximum)

California

CA Penal § 987.5(a)

$50 Registration Fee (maximum)

Colorado

CO ST § 21-1-103

$25 Processing Fee

Delaware

DE ST TI 29 § 4607

$100 Administrative Fee

Florida

FL ST § 27.52(b)

$50 Application Fee

Georgia

GA ST § 15-21A-6(c) $50 Application Fee

Indiana

IN ST § 35-33-7-6

$100 Fee for Felony / $50 for Misdemeanor

Kansas

KS ST § 22-4529

$100 Application Fee

Massachusetts

MA ST 211D § 2A(f)

$150 Counsel Fee (or 15 hours of community service)

Minnesota

MN ST § 611.17(c)

$75 Co-Payment

New Mexico

NM ST § 31-15-12(c) $10 Application Fee

North Carolina

NC ST § 7A-455.1

$60 Appointment Fee (if defendant convicted)

Ohio

OH ST § 120.36

$25 Application Fee

Oklahoma

OK ST T 22 § 1355A

$40 Application Fee

South Carolina

SC ST § 17-3-30(B)

$40 Application Fee

Tennessee

TN ST § 40-14-103

$50 Administrative Fee

Part 2 — Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel

17

defendants either make a

assigned counsel.44 While this procedure is
consistent with current ABA standards, it may
discourage “marginally indigent” defendants
from exercising their right to counsel.

contribution or reimburse

Conclusion

Virtually every state has some
requirement that indignant

the state for the costs of
representation and one third
have application fees for
assigned counsel

18
place before a defendant can be asked to
contribute to the costs of representation.43
Virtually every state has some requirement that
indigent defendants either make a contribution or
reimburse the state for the costs of representation
and one third have application fees for assigned
counsel, although these fees can be waived. The
requirement to make a contribution or to
reimburse the state typically applies even if a
defendant is not convicted, and there are seldom
procedural safeguards to ensure that only
defendants who are financially able to do so are
required to make payments.
Even if states are permitted to require
reimbursement from a defendant for the costs of
representation, requiring a “marginally indigent”
defendant to do so may not be in the state’s longterm financial interest. It makes little sense to
require reimbursement from a defendant for the
cost of legal services if that added financial
burden will make the defendant dependent upon
other forms of state aid for the necessities of life.
In addition, states like Missouri and Wisconsin
require that defendants be informed of their
repayment obligations at the time they apply for

The following table details the way “indigency” is
defined in all 50 states and the District of Columbia.
The table includes each state’s definition of
indigency, how it uses the Federal Poverty
Guidelines, and whether it takes into consideration
the ability to make bail and the receipt of public
benefits when making an indigency determination.
It also lists the criteria used by states when
determining if a defendant must contribute to the
costs of their defense or reimburse the state for the
entire costs of their defense.
As the Supreme Court observed in Gideon:
“Governments, both state and federal, quite properly spend vast sums of money to establish machinery to try defendants accused of crime.”45
While states continue to spend vast sums of
money on prosecuting and incarcerating defendants, they have been reluctant to spend the
money necessary to ensure that those “too poor”
to hire a lawyer have access to counsel. In an
effort to reduce the costs associated with
providing counsel to those “too poor” to hire a
lawyer, states have enacted statutes that dictate
financial eligibility criteria for assigned counsel.
They have increasingly incorporated the Federal
Poverty Guidelines into their calculations
regarding eligibility and have created new
categories of defendants who are “marginally
indigent” or “indigent but able to contribute.”
They have imposed application fees and
contribution schedules on defendants who apply
for assigned counsel and require defendants to
reimburse the state for the costs of their defense
at the conclusion of their case.

Gideon at 50: A Three-Part Examination of Indigent Defense in America

The result is that many defendants who are too poor
to hire a lawyer fail to qualify for assigned counsel.
They are considered ineligible for assigned counsel
because their income exceeds strict financial
guidelines that do not reflect the real costs
associated with mounting an adequate defense or
because they used what little financial resources
they had to post bond. Even those defendants who
do qualify for assigned counsel are required to
reimburse the state for the cost of their defense.
States need to adopt standards for determining indigency that are consistent with ABA Standards
for Providing Defense Services in order to ensure
that those who are “too poor to hire a lawyer”
have access to counsel. This includes allowing indigent defense providers, a neutral screening
agency or the court to make eligibility determinations based on realistic estimates regarding the
actual cost of retaining counsel.46 Counsel must
also be provided to those unable to obtain adequate representation without substantial hardship
and should not be denied because of a person’s
ability to post bond.47 Finally, reimbursement of
the costs of defense should not be required except
on the ground of fraud during the eligibility determination and any contribution toward the costs
of defense should not be imposed unless there are
satisfactory procedural safeguards in place.48
While there is ample anecdotal evidence that restrictive eligibility guidelines induce defendants
to waive counsel, research is needed to expose the
full extent of this problem. It is clear, however,
that defendants who fail to qualify for assigned
counsel but lack the financial resources to hire a
lawyer are forced to either represent themselves
or pay a defense attorney for what amounts to
representation in name only.

The widely held belief that if you cannot afford
an attorney one will be provided to you free of
charge is simply not true. Defendants today are
still placed in the same position as Clarence Earl
Gideon, who appeared in court “without funds
and without a lawyer”49 and requested the assistance of counsel but had his request denied. In redefining what it means to be “too poor to hire a
lawyer,” too many states have been able to ignore
the central premise of Gideon that “lawyers in
criminal courts are necessities, not luxuries.”50

19

Endnotes

1. John P. Gross, Too Poor to Hire a Lawyer but Not
Indigent: How States Use the Federal Poverty Guidelines to
Deprive Defendants of their Sixth Amendment Right to Counsel,
70 Was. & Lee L. Rev. 1173 (2013).
2. See NAT’L RIGHT TO COUNSEL COMM., JUSTICE DENIED:
A MERICA’ S C ONTINUING N EGLECT OF O UR C ONSTITUTIONAL
RIGHT TO COUNSEL (2009).
3. The term “assigned counsel” refers to any lawyer who is
paid by the government to represent a person accused of a crime
and includes both public defenders and private attorneys who participate in indigent defense delivery systems.
4. See Hardy v. United States, 375 U.S. 277, 292-94 (1964)(
Goldberg, J., concurring)(arguing that the government should provide free trial transcripts to those defendants “who cannot afford
to purchase one,” rather than only those defendants who are
wholly without means); Adkins v. E.I. DuPont de Nemours & Co.,
335 U.S. 331, 339 (1948)(“We cannot agree with the court below
that one must be absolutely destitute to enjoy the benefits of the

While states continue to spend
vast sums of money on prosecuting
and incarcerating defendants, they
have been reluctant to spend the
money necessary to ensure that
those “too poor” to hire a lawyer
have access to counsel.

Part 2 — Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel

20

statute.”).
5. H.R. R EP. N O . 88-864, at 7 (1963), reprinted in 1964
U.S.C.C.A.N. 2990, 2995 (referring to 18 U.S.C. § 3006A(a)).
6. Hardy v. United States, 375 U.S. 277 (1964).
7. See id. At 282 (“We conclude that this counsel’s duty cannot be discharged unless he has a transcript of the testimony and
the evidence presented by the defendant and also the court’s
charge to the jury, as well as the testimony and evidence presented
by the prosecution.”).
8. Id. at 289 n.7 (Goldberg, J., concurring)(citations omitted)(quoting ATT’Y GEN.’S COMM. ON POVERTY & THE ADMIN.
OF C RIMINAL J USTICE , R EPORT ON P OVERTY AND THE
ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE 8(1963)).
9. Ake v. Oklahoma, 470 U.S. 68 (1985).
10. See id. at 84 (“[W]here the consequence of error is so
great, the relevance of responsive psychiatric testimony so evident, and the burden on the State so slim, due process requires access to a psychiatric examination on relevant issues, to the
testimony of the psychiatrist, and to assistance in preparation at the
sentencing phase.”).
11. Id. at 76.
12. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
13. Ake, 470 U.S. at 76.
14. ABA S TANDARDS FOR C RIMINAL J USTICE P ROVIDING
D EFENSE S ERVICES , S TANDARD 5-7.1: E LIGIBILITY FOR
ASSISTANCE (1992).
15. The following states consider whether a defendant will
suffer “substantial hardship” if they are denied assigned counsel:
Alabama, Florida, Hawaii, Indiana, Louisiana, Maryland,
Michigan, Montana, Nevada, New Mexico, Oregon.
16. See ROBERT L .SPANGENBERG ET AL., U.S. DEP’T OF
JUSTICE, CONTAINING THE COSTS OF INDIGENT DEFENSE PROGRAMS:
ELIGIBILITY SCREENING AND COST RECOVERY PROCEDURES 9 (1986):
(“In the past, in many jurisdictions, counsel was appointed simply
on the request of the defendant. Some judges asserted that the time
and effort necessary for eligibility screening was unwarranted,
since only a few defendants would be excluded.”).
17. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
18. See ROBERT L .SPANGENBERG ET AL., U.S. DEP’T OF
JUSTICE, CONTAINING THE COSTS OF INDIGENT DEFENSE PROGRAMS:
ELIGIBILITY SCREENING AND COST RECOVERY PROCEDURES 1 (1986):
(“Between 1978 and 1982 the cost of providing indigent defense
services in U.S. state courts more than tripled, rising sharply from
approximately 200 million to over 600 million dollars.”).
19. ABA S TANDARDS FOR C RIMINAL J USTICE P ROVIDING
D EFENSE S ERVICES , S TANDARD 5-7.1: E LIGIBILITY FOR
ASSISTANCE (1992).
20. See Gordon M. Fischer, The Development and History of
the Poverty Thresholds, 55 SOC. SEC. BULL. 43, 43 (1992).
21. See 42 U.S.C. § 2996b(a)(2012)(“There is established in
the District of Columbia a private nonmembership organization
nonprofit corporation, which shall be known as the Legal Services
Corporation, for the purpose of providing financial support for
legal assistance in noncriminal proceedings or matters to persons
financially unable to afford legal assistance.”).

22. See 45 C.F.R. § 1611.3(b)(1977)(“Unless specifically authorized by the Corporation, a recipient shall not establish a maximum annual income level that exceeds one hundred and twenty
fine (125%) of the official poverty threshold as defined by the
Office of Management and Budget.”).
23. See Fischer, supra note 25, at 3 (“The poverty thresholds
were developed in 1963-64 by Mollie Orshansky…).
24. See id. (stating that Orshansky’s original purpose for the
thresholds was not to measure poverty).
25. See id. (stating that Orshansky’s intent for the poverty
thresholds was to “develop a measure to access the relative risks
of low economic status… among different demographic groups
of families with children”).
26. CARMEN DENAVAS-WALT, BERNADETTE D. PROCTOR &
CHERYL HILL LEE, U.S. CENSUS BUREAU, INCOME, POVERTY, AND
HEALTH INSURANCE COVERAGE IN THE UNITED STATES: 2004, at 45
(2005), http://www.census.gov/prod/2005pubs/p60-229.pdf.
27. See Fischer, supra note 25, at 4 (describing how
Orshansky developed the poverty thresholds using food plans prepared by the Department of agriculture).
28. See id. (stating that the data underlying Orshansky’s plan
came from the Agriculture Department’s 1955 Household Food
Consumption Survey).
29. See id. at 5 (articulating Orshansky’s “multiplier’
methodology” for deriving the poverty thresholds).
30. See WIC Income Eligibility Guidelines 2012-2013, U.S.
DEP’T OF AGRICULTURE (July 13, 2012), http://www.fns.usda.gov/
wic/howtoapply/incomeguidelines.htm.
31. Supplemental Nutritional Assistance Program, U.S.
DEP’T OF AGRICULTURE (October 4, 2012), http://www.fns.usda.
gov/snap/applicant_recipients/eligibility.htm#income.
32. National School Lunch Program, U.S. DEP’T OF AGRIC.
2 (August 2012), http://www.fns.usda.gov/cnd/lunch/About
Lunch/NSLPFactSheet.pdf.
33. LIHEAP Eligibility Criteria, U.S. DEP’T OF HEALTH &
H UMAN S ERVS . (May 8, 2012), http://www.acf.hhs.gov/programs/ocs/resource/liheap-eligibility-criteria.
34. See CHIPS Eligibility Standards, U.S. DEP’T OF HEALTH
& H UMAN S ERVS ., http://www.medicaid.gov/Medicaid-CHIPProgram-Information/By-Topics/Childrens-Health-InsuranceProgram-CHIP/CHIP-Eligibility-Standards-.html.
35. See Adam M. Gershowitz , The Invisible Pillar of
Gideon, 80 IND. L. J. 571 at 587 (2005)(discussing the financial
resources available to a defendant making 125 percent of the
Federal Poverty Guidelines).
36. Id. at 588 (discussing the incentives for criminal defense
attorneys to charge a substantial retainer).
37. ABA S TANDARDS FOR C RIMINAL J USTICE P ROVIDING
D EFENSE S ERVICES , S TANDARD 5-7.1: E LIGIBILITY FOR
ASSISTANCE (1992).
38. James v. Strange, 407 U.S. 128 (1972).
39. Id. at 141-142.
40. Id.
41. Fuller v. Oregon, 417 U.S. 40 (1974).
42. Id. at 53-54.

Gideon at 50: A Three-Part Examination of Indigent Defense in America

43. ABA STANDARDS FOR CRIMINAL JUSTICE: PROVIDING
DEFENSE SERVICES, STANDARD 5-7.2: REIMBURSEMENT, NOTICE
AND I MPOSITION OF C ONTRIBUTION (1992).
44. See Missouri Application and Affidavit for Public
Defender Services, Notice of Intent to File Claim for Legal
Services, http://www.publicdefender.mo.gov/clients/Application_
Services.pdf; see also Wisconsin Administrative Code, State
Public Defender Board 6.015, Written Notice of Payment
Obligation for Legal Representation, http://docs.legis.wisconsin.gov/code/admin_code/pd/6.
45. Gideon v. Wainwright, 372 U.S. 335, 344 (1963).
46. ABA STANDARDS FOR CRIMINAL JUSTICE: PROVIDING
DEFENSE SERVICES, STANDARD 5-7.3: DETERMINATION OF
ELIGIBILITY (1992).
47. ABA S TANDARDS FOR C RIMINAL J USTICE P ROVIDING
D EFENSE S ERVICES , S TANDARD 5-7.1: E LIGIBILITY FOR
ASSISTANCE (1992).
48. ABA STANDARDS FOR CRIMINAL JUSTICE: PROVIDING
DEFENSE SERVICES, STANDARD 5-7.2: REIMBURSEMENT, NOTICE
AND I MPOSITION OF C ONTRIBUTION (1992).
49. Gideon v. Wainwright, 372 U.S. 335, 337 (1963).
50. Id. at 344.

Part 2 — Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel

21

= States who USE

the Federal
Poverty Guidelines

= States that

DO NOT USE
the Federal
Poverty
Guidelines

22

= States that consider
SUBSTANTIAL
HARDSHIP

= States that

consider the
ABILITY TO
MAKE BAIL

= States that consider
PUBLIC BENEFITS
AS INCOME

Gideon at 50: A Three-Part Examination of Indigent Defense in America

23

MAP OF INCOME ELIGIBILITY GUIDELINES
FOR ASSIGNED COUNSEL IN THE 50 STATES
Part 2 — Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
ALABAMA

24

Definition: Any person who under oath or affirmation states that he or she is unable to pay for his or
her representation, and who is found by the court to be financially unable to pay for his or her
representation. AL ST § 15-12-1(4)
FPG: Indigent if income is below 125% and the person is unable to pay the cost of an attorney or between 125% and 200% if the failure to appoint counsel would result in substantial hardship.
AL ST § 15-12-1(4)(a)(b)
Bail: N/A
Public Benefits: N/A
Repayment: A court may require a convicted defendant to pay the fees of court appointed counsel.
AL ST § 15-12-25(a)(1) Payment can be a condition of probation. AL ST § 15-12-25(b)(2)
Nonpayment can be the basis for contempt AL ST § 15-12-25(c)(2)
ALASKA
Definition: A person who, at the time need is determined, does not have sufficient assets, credit, or
other means to provide for payment of an attorney and all other necessary expenses of representation without depriving the party or the party’s dependents of food, clothing, or shelter. AK ST § 18.85.170(4)
FPG: The court can assume that a defendant’s expenses are equal to the Federal Poverty Guidelines.
Rule of Criminal Procedure 39.1(h)(2)
Bail: Release on bail does not preclude a finding that a person is indigent. AK ST § 18.85.120(b)
Public Benefits: Presumptively eligible if receiving benefits. Rule of Criminal Procedure 39.1(f)
Repayment: Upon conviction, a defendant can be assessed the “costs of appointed counsel” pursuant to a schedule of costs based on the offense charged. See Rule of Criminal Procedure
39(c)(d)
ARIZONA
Definition: A person who is not financially able to employ counsel. AZ ST RCRP Rule 6.4(a)
FPG: N/A
Bail: Comments to RCRP Rule 6.4(a) say court should not consider release on bail when determining
indigence.
Public Benefits: Factors include social security and unemployment compensation. See Morger v.
Superior Court In and For Pima County, 637 P.2d 310 (1981)
Repayment: If the court finds that an indigent defendant has financial resources which offset, in part,
the costs of the legal services provided, the court shall order the defendant to pay whatever
amount it finds they are able to pay without incurring substantial hardship. Failure to pay can
be the basis for contempt. AZ ST RCRP Rule 6.7(d) Public Defenders are required to seek reimbursement from defendants. AZ ST § 11-584(c)

Gideon at 50: A Three-Part Examination of Indigent Defense in America

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
ARKANSAS
Definition: An indigent person is a person who, at the time his or her need is determined, is without
sufficient funds or assets to employ an attorney or afford other necessary expenses incidental thereto. AR ST § 16-87-201
FPG: N/A
Bail: The state cannot force a defendant to choose between posting bond and obtaining counsel. See
Hill v. State, 802 S.W.2d 144 (1991)
Public Benefits: Court can consider income from governmental programs such as social security and
unemployment benefits. See Hill v. State, 802 S.W.2d 144 (1991)
Repayment: At the time of final disposition of any charges pending against a defendant represented
by a public defender, the public defender shall ask the court to enter a judgment against the
defendant in favor of the State of Arkansas for legal services rendered pursuant to a schedule
of costs based on the offense charged. AR ST § 16-87-218 (c)
CALIFORNIA
Definition: A person who is financially unable to employ counsel is considered indigent. CA GOVT
§ 27707 The test is whether or not a private attorney would be interested in representing the
defendant in his present economic circumstances. See Williams v. Superior Court, 38 Cal. Rptr.
291 (1964)
FPG: N/A
Bail: It is improper for a court to refuse to appoint counsel solely because the defendant has posted
bond. See Williams v. Superior Court, 38 Cal. Rptr. 291 (1964)
Public Benefits: N/A
Repayment: In any case in which a party is provided legal assistance, either through the public defender or private counsel appointed by the court, upon conclusion of the proceedings, the
court may make a determination of the ability of the party to pay all or a portion of the cost of
such legal assistance. CA GOVT § 27712(a)
COLORADO
Definition: An indigent person is one whose financial circumstances prevent the person from having
equal access to the legal process. Colorado Chief Justice Directive 04-04
FPG: Eligible if income is less than 125% of the Federal Poverty Guidelines and may be eligible if income
is between 125% and 218%. Ineligible if income is above 218% of the Federal Poverty
Guidelines. Colorado Chief Justice Directive 04-04
Bail: N/A
Public Benefits: The court may consider Social Security Supplemental Income and unemployment
benefits but may not consider other forms of public assistance such as SNAP. Colorado Chief
Justice Directive 04-04
Repayment: In any case when a court determines that a defendant is able to repay all or part of the
expense of state-supplied or court-appointed counsel or any ancillary expenses incurred in
representing such defendant, the court shall assess such fees or costs against such defendant.
CO ST § 21-1-106

Part 2 — Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel

25

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
CONNECTICUT

26

Definition: An indigent defendant is a person who does not have the financial ability at the time of
his request for representation to secure competent legal representation and to provide other
necessary expenses of legal representation. CT ST §51-297(f)
FGP: A defendant charged with a misdemeanor may be eligible if their annual income is below 150%
and if charged with a felony if their income is less than 200% of the Federal Poverty Guidelines.
Division of Public Defender Services Income Eligibility Guidelines.
Bail: N/A
Public Benefits: N/A
Repayment: If at any time, either during or after the disposition of his case, a defendant who is receiving or has received public defender services based on his indigency becomes financially
able to meet all or some part of the cost of the services rendered to him, he shall be required
to reimburse the commission, in such amounts as he can reasonably pay, either by a single payment or by installments of reasonable amounts, in accordance with a schedule of charges for
public defender services prepared by the commission. CT ST 51-298(a)(1)
DELAWARE
Definition: A defendant is considered indigent when he is unable to retain legal counsel without impairing his financial ability to provide economic necessities of life for himself and his family.
See Potter v. State, 547 A.2d 599 (1988)
FPG: N/A
Bail: N/A
Public Benefits: The trail court should consider additional resources which may be available to the
defendant, including real and personal property, bank accounts, social security payments,
and unemployment or other benefits. See Potter v. State, 547 A.2d 599 (1988)
Repayment: A court may require a convicted defendant who has utilized court-appointed attorneys
or the Public Defender’s Office to pay the costs of defense in that court. 10 Del. C. § 8601(a)
DISTRICT OF COLUMBIA
Definition: Financially unable to obtain adequate representation DC CODE § 11-2601
FPG: N/A1
Bail: Not a factor in determining eligibility.
Public Benefits: N/A
Repayment: Whenever the court finds that funds are available for payment from or on behalf of a
person furnished representation, it may authorize or direct that such funds be paid to the appointed attorney… or to the court for deposit in the Treasury as a reimbursement to the appropriation DC CODE § 11-2606

1. Eligibility is determined based in part on the Department of Labor’s Lower Living Standards which are significantly higher than
the Federal Poverty Guidelines.

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NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
FLORIDA
Definition: “Indigent” shall mean a person who is unable to pay for the services of an attorney, including costs of investigation, without substantial hardship to the person or the person’s family; “partially indigent” shall mean a person unable to pay more than a portion of the fee
charged by an attorney, including costs of investigation, without substantial hardship to the
person or the person’s family. FL ST RCRP 3.111
FPG: Defendants are indigent if their household income is below 200% of the Federal Poverty
Guidelines or if the person is receiving Temporary Assistance for Needy Families-Cash
Assistance, poverty-related veterans’ benefits, or Supplemental Security Income (SSI). FL ST
§ 27.52(2)(a)
Bail: Applications for the appointment of counsel must include the amount of bail posted and the
source of the funds FL ST § 27.52(1)(a)(5) Judges should consider if a defendant has been released on bail in an amount of $5,000 or more. FL ST § 27.52(4)(a)(1)
Public Benefits: Applications for the appointment of counsel must include income from social security benefits, veterans’ benefits, workers’ compensation, other regular support from absent
family members, public or private employee pensions, reemployment assistance or unemployment compensation. FL ST § 27.52(1)(a)(2)
Repayment: Convicted defendants are liable for payment of the costs of prosecution, without regard
to the defendant’s current ability to pay. FL ST § 938.27 Counsel may be provided to a partially indigent person on request, provided that the person defrays that portion of the cost of
representation and the reasonable costs of investigation as he or she is able without substantial hardship to the person or the person’s family. FL ST RCRP 3.111
GEORGIA
Definition: An indigent defendant is a person charged with a misdemeanor who earns less than 100
percent of the Federal Poverty Guidelines or a person charged with a felony who earns less
than 150 percent of the federal poverty guidelines unless there is evidence that the person has
other resources that might reasonably be used to employ a lawyer without undue. In no case
shall a person whose maximum income level exceeds 150 percent of the federal poverty
level be an indigent person or indigent defendant. GA ST § 17-12-2(6)
FPG: Must make below 100 percent of the Federal Poverty guidelines to qualify for representation on
a misdemeanor charge. Must make below 150 percent of the Federal Poverty guidelines to
qualify for representation on a felony charge. Ineligible if income exceeds 150 percent of the
Federal Poverty Guidelines
Bail: N/A
Public Benefits: N/A
Repayment: When a defendant who is represented by a public defender is convicted, the court may
impose as a condition of probation repayment of all or a portion of the cost for providing legal
representation and other expenses of the defense if the payment does not impose a financial
hardship upon the defendant or the defendant’s dependent or dependents. GA ST § 17-1251

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HAWAII
Definition: Indigency is the “financial inability to obtain legal counsel”. HI ST § 802-4 A defendant is
indigent if “unable to obtain counsel without substantial financial hardship to himself or his
family”. HRS See State v. Mickle, 56 Haw. 23, 525 P.2d 1108 (1974)
FPG: Defendants whose income is at or below 150% of the federal Poverty guidelines automatically
qualify for representation. State of Hawaii Office of the Public Defender
Bail: N/A
Public Benefits: Defendants who are eligible for or who are receiving food stamps (TANF) are automatically eligible. State of Hawaii Office of the Public Defender
Repayment: If the court is satisfied that the defendant is financially able to make partial payment for
representation… the court shall direct payment for such representation as the interests of justice may dictate. HI ST § 802-6

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IDAHO

Definition: “Indigent person” means a person who, at the time his need is determined pursuant to section 19-854, Idaho Code, is unable to provide for the full payment of an attorney and all other
necessary expenses of representation ID ST § 19-851(4)
FPG: A defendant is presumed to be indigent if their monthly income does not exceed one hundred
eighty-seven percent (187%) of the Federal Poverty Guidelines ID ST § 19-854(2)(a)
Bail: Release on bail does not necessarily prevent a person from being an indigent person. ID ST § 19854(4)
Public Benefits: A defendant is presumed to be indigent if they receive, or their dependents receive,
public assistance in the form of food assistance, health coverage, cash assistance or child care
assistance. ID ST § 19-854(2)(b)
Repayment: Upon conviction for any crime an indigent person who receives the services of an attorney provided by the county may be required by the court to reimburse the county for all
or a portion of the cost of those services related to the conviction, unless the requirement
would impose a manifest hardship on the indigent person. The current inability of the indigent person to pay the reimbursement shall not, in and of itself, restrict the court from ordering reimbursement. ID ST § 19-854(7)
ILLINOIS
Definition: A defendant need not be entirely without funds for purposes of having the right to appointed counsel; rather, a defendant may be indigent if he lacks financial resources on a practical basis to retain counsel. See People v. Adams, 328 Ill.Dec. 232, 388 Ill.App.3d 762, 903
N.E.2d 892 (App. 3 Dist.2009)
FPG: N/A
Bail: Release on bail does not preclude a finding of indigency. See People v. Miller, 23 Ill.App.3d 149,
318 N.E.2d 739 (App. 5 Dist. 1974.)
Public Benefits: N/A
Repayment: Whenever the court appoints counsel to represent a defendant, the court may order the
defendant to pay a reasonable sum to reimburse either the county or the State for such representation. IL ST CH 725 §5/113-3.1(a) Any sum ordered may not exceed $500 for a defendant charged with a misdemeanor, $5,000 for a defendant charged with a felony. IL ST CH
725 §5/113-3.1(b)

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NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
INDIANA
Definition: A “defendant does not have to be totally without means to be entitled to counsel. If he
legitimately lacks the financial resources to employ an attorney, without imposing substantial
hardship on himself or his family, the court must appoint counsel to defend him.” Moore v.
State, 273 Ind. 3, 401 N.E.2d 676 (1980) “It is not possible to set specific monetary guidelines
for the determination of indigency.” Hall v. State, 826 N.E.2d 99 (Ind. App. 2005)
FPG: N/A
Bail: The fact that a defendant posted bail is a factor in determining indigency. See Moore v. State, 273
Ind. 3, 401 N.E.2d 676 (1980)
Public Benefits: N/A
Repayment: If the court finds that the person is able to pay part of the cost of representation by assigned counsel, the court shall order the person to pay the following: For a felony action, a fee
of one hundred dollars ($100). For a misdemeanor action, a fee of fifty dollars ($50). IN ST 2533-7-6(c)(1),(2) If at any stage of a prosecution for a felony or a misdemeanor the court makes
a finding of ability to pay the costs of representation, the court shall require payment by the
person of the following costs in addition to other costs assessed against the person:
Reasonable attorney’s fees if an attorney has been appointed for the person by the court. IN
ST 33-40-3-6(a)(1),(2)
IOWA
Definition: An indigent person is someone whose income is at or below 125% of the Federal Poverty
Guidelines, unless the court determines they are able to pay for an attorney. IA ST § 815.9(1)(a)
A person whose income is above 125% but below 200% is not indigent unless the court
makes a finding that not appointing counsel would cause substantial hardship. IA ST §
815.9(1)(b)
FPG: Presumptively eligible if income at or below 125% of the Federal Poverty Guidelines. IA ST §
815.9(1)(a) Eligible if failure to appoint counsel would result in substantial hardship if income
above 125% and below 200% of the Federal Poverty Guidelines. IA ST § 815.9(1)(b)
Bail: N/A
Public Benefits: N/A
Repayment: If a person is granted an appointed attorney, they are required to reimburse the state the
total cost of legal assistance. IA ST § 815.9(3) If convicted in a criminal case, the court shall
order the payment of the costs of legal assistance as restitution or order community service in
lieu of restitution. IA ST § 815.9(5) If acquitted in a criminal case, the court shall order the payment of all or a portion of the cost of legal assistance, to the extent the person is reasonably
able to pay. IA ST § 815.9(6)

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KANSAS

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Definition: An indigent defendant is someone who is financially unable to employ counsel. If the defendant’s assets and income are not sufficient to cover the anticipated cost of effective representation, the defendant shall be determined indigent in full or in part and the court shall
appoint an attorney. KS ST 22-4504(b)
FPG: An eligible defendant shall mean a person whose combined household income and liquid assets equals less than the most current Federal Poverty Guideline. KAR § 105-4-1
Bail: N/A
Public Benefits: N/A
Repayment: The Kansas State Board of Indigent Defense Services sets attorney cost reimbursement
rates based on the level of offense and whether the case went to trial. They range from $300
to $8,635. KAR § 105-11-1
KENTUCKY
Definition: A “needy person” or “indigent person” means a person eighteen years of age or older
who, at the time his or her need is determined, is unable to provide for the payment of an attorney and all other necessary expenses of representation KY ST § 31.100(3)(a)
FPG: The Federal Poverty Guidelines are one of the factors considered when determining indigency.
KY ST § 31.120(2)(h)
Bail: Payment of bail by the defendant or another person is a factor considered when determining indigency. KY ST § 31.120(2)(l)
Public Benefits: N/A
Repayment: The court shall conduct a hearing to determine whether a person who has requested a
public defender is able to pay a partial fee for legal representation, the other necessary services and facilities of representation, and court costs. The court shall order payment in an
amount determined by the court and may order that the payment be made in a lump sum or
by installment payments to recover money for representation provided. KY ST § 31.211(1)
LOUISIANA
Definition: A person will be deemed “indigent” who is unable, without substantial financial hardship
to himself or to his dependents, to obtain competent, qualified legal representation on his
own. “Substantial financial hardship” is presumptively determined to include all defendants
who receive public assistance… or earns less than two hundred percent of the Federal Poverty
Guideline. LA RS § 15.175(A)(1)(b)
FPG: Defendants earning less than 200% of the Federal Poverty Guidelines are presumptively indigent.
LA RS § 15.175(A)(1)(b)
Bail: Release on bail alone shall not disqualify a person for appointment of counsel. LA RS §
15.175(B)(2)
Public Benefits: The court may consider such factors as income or funds from employment or any
other source, including public assistance. LA RS § 15.175(B)(1)
Repayment: To the extent that a person is financially able to provide for an attorney, other necessary
services, and facilities of representation and court costs, the court shall order him to pay for
these items. The court may order payment in installments, or in any manner which it believes
reasonable and compatible with the defendant’s financial ability. LA RS § 15.176(A)

Gideon at 50: A Three-Part Examination of Indigent Defense in America

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
MAINE
Definition: A defendant does not have sufficient means with which to employ counsel if the defendant’s lack of resources effectively prevents the defendant from retaining the services of competent counsel. ME R RCRP 44(b)
FPG: The defendant’s income must be below 110% of the Federal Poverty Guidelines to be eligible
for assigned counsel. Maine Commission on Indigent Legal Services Chapter 401, Section 1
(2)(D)
Bail: Cash bail is considered an asset for determining eligibility for assigned counsel. Maine Commission
on Indigent Legal Services Chapter 401, Section 1 (1)(B)
Public Benefits: When determining eligibility income includes Social Security, TANF, VA, unemployment and workers compensation. Maine Commission on Indigent Legal Services Chapter 401,
Section 1 (1)(A)
Repayment: If a defendant’s income exceeds necessary monthly expenses, the applicant should be
required to make periodic payments based on that amount to reimburse the State for the cost
of assigned counsel. Maine Commission on Indigent Legal Services Chapter 401, Section 1
(2)(E) Cash bail is also used to reimburse counsel fees paid by the State. Maine Commission
on Indigent Legal Services Chapter 401, Section 2 (1)
MARYLAND
Definition: A defendant is indigent if they cannot provide the full payment of an attorney and all other
necessary expenses of representation without undue financial hardship. MD CRIM PROC § 16210(a)
FPG: For an individual whose assets and net annual income are less than 100% of the federal poverty
guidelines, eligibility may be determined without an assessment regarding the need of the applicant. MD CRIM PROC § 16-210(b)
Bail: The fact a defendant has posted bail cannot be used as a ground to deny appointed counsel.
See Baldwin v. State, 51 Md. App. 538 (1982)
Public Benefits: N/A
Repayment: A court exercising criminal jurisdiction shall order a defendant to reimburse the State for
services rendered to the defendant by the Public Defender as a term or condition of a sentence, judgment, or probation imposed by the court, unless the court affirmatively finds that
the defendant cannot make the reimbursement; and waives the term or condition. MD CRIM
PROC § 16-211(c)(1)(i),(ii)

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50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
MASSACHUSETTS

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Definition: An indigent person is someone who is receiving an annual income, after taxes, one hundred twenty-five percent or less of the Federal Poverty Guidelines. MA R S CT 3:10, Section
1(f)(ii)
FPG: Defendants who make less than 125% of the Federal Poverty Guidelines are considered “indigent”
and those making more than 125% but less than 250% are considered “indigent but able to
contribute”. MA R S CT 3:10, Section 1(g)(i),(ii)
Bail: N/A
Public Benefits: A person is considered indigent if they are receiving certain need based forms of
public assistance. MA R S CT 3:10, Section 1(f)(i) Income for purposes of determining indigency includes payments from social security and public assistance programs. MA R S CT
3:10, Section 1(e)
Repayment: If a party is determined to be indigent but able to contribute, the judge shall order the
party to pay a reasonable amount to the probation officer or other appropriate court employee toward the cost of counsel. The amount ordered to be paid shall be based on the financial circumstances of the party. MA R S CT 3:10, Section 10(c)(ii)
MICHIGAN
Definition: A defendant is considered to be indigent if he or she is unable, without substantial financial hardship to himself or herself or to his or her dependents, to obtain competent, qualified
legal representation. Substantial financial hardship shall be rebuttably presumed if the defendant receives personal public assistance or earns an income less than 140% of the Federal
Poverty Guideline. MI ST 780.991(3)(b)
FPG: Defendant rebuttably presumed eligible if income is less than 140% of the Federal Poverty
Guideline. MI ST 780.991(3)(b)
Bail: N/A
Public Benefits: The court may consider such factors as income or funds from employment or any
other source, including personal public assistance. MI ST 780.991(3)(a) Receiving certain forms
of public assistance creates a rebuttable presumption of eligibility. MI ST 780.991(3)(b)
Repayment: N/A
MINNESOTA
Definition: A defendant is financially unable to obtain counsel if the court determines that the defendant, through any combination of liquid assets and current income, would be unable to
pay the reasonable costs charged by private counsel in that judicial district for a defense of
the same matter. MN ST § 611.17(a)(2)
FPG: Courts cannot rely solely on the Federal Poverty Guidelines but they can be used as a factor when
determining eligibility for assigned counsel. See State v. Jones, 772 N.W.2d 496 (Minn. 2009)
Bail: N/A
Public Benefits: If a defendant receives “means tested government benefits” they are presumptively
eligible for assigned counsel. MN ST § 611.17(a)(1),(2)
Repayment: If the court determines that the defendant is able to make partial payment, the court shall
direct the partial payments to the state general fund. MN ST § 611.20(2) A court may order a
defendant to reimburse the state for the cost of the public defender. The court may accept
partial reimbursement from the defendant if the defendant’s financial circumstances warrant
establishing a reduced reimbursement schedule. MN ST § 611.20(4)(a)

Gideon at 50: A Three-Part Examination of Indigent Defense in America

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
MISSISSIPPI
Definition: A defendant is indigent when they are unable to employ counsel. MS ST § 99-15-15
FPG: Varies by County
Bail: N/A
Public Benefits: Varies by County
Repayment: N/A
MISSOURI
Definition: A defendant is indigent when it appears from all the circumstances of the case including
his ability to make bond, his income and the number of persons dependent on him for support that the person does not have the means at his disposal or available to him to obtain
counsel in his behalf and is indigent. MO ST 600.086(1)
FPG: A defendant may be considered indigent if his or her gross pay and other sources of income do
not exceed the Federal Poverty Guidelines. MO CSR 10-3.010(2)(A)
Bail: The ability to make bail is considered a factor when determining indigency. MO ST 600.086(1)
Public Benefits: Unemployed defendants receiving public assistance are eligible for defense services
regardless of the amount of the benefits. MO CSR 10-3.010(2)(A) If a defendant is receiving
disability payments, pension, unemployment compensation or Social Security, this is considered income. MO CSR 10-3.010(2)(A)
Repayment: If a person is determined to be eligible and if he or she is able to provide limited cash
contributions toward the cost of representation without imposing a substantial hardship, such
contributions shall be required as a condition of representation. If at any time, either during
or after the disposition of the case, a defendant becomes financially able to meet all or some
part of the cost of services rendered, they shall be required to reimburse the commission in
such amounts as they can reasonably pay, either by a single payment or by installments of
reasonable amounts, in accordance with a schedule of charges for public defender services
prepared by the commission.2 MO CSR 10-3.010(2)(A)

2. The schedule of charges varies based on the level of offense and the point at which the case was resolved. Reimbursement
amounts range from $65 for the early resolution of a misdemeanor to $12,500 for a charge which carries the death penalty.

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50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
MONTANA

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Definition: A defendant is indigent if their gross household income is at or less than 133% of the Federal
Poverty Guidelines or their disposable income and assets are insufficient to retain competent
private counsel without substantial hardship to the applicant or the members of the applicant’s
household. MT ST 47-1-111(3)(a),(b)
FPG: A defendant is indigent if their household income is less than 133% of the Federal Poverty
Guidelines. MT ST 47-1-111(3)(a)
Bail: A defendant may not be deemed ineligible for assigned counsel based solely on an ability to
post bail. MT ST 47-1-111(4)
Public Benefits: Public benefits may be considered since “gross household income” is defined as “all
income received by all individuals of a household while they are members of the household.”
MT ST 15-30-2337
Repayment: The court shall determine whether a convicted defendant should pay the costs of counsel assigned to represent the defendant as follows: a plea of guilty to one or more misdemeanor charges is $250; a plea of guilty to one or more felony charges is $800. MT ST
46-8-113(1)(a) If the case goes to trial, the defendant shall pay the costs incurred by the office
of state public defender for providing the defendant with counsel in the criminal trial. MT ST
46-8-113(1)(b)
NEBRASKA
Definition: Indigent shall mean the inability to retain legal counsel without prejudicing one’s financial
ability to provide economic necessities for one’s self or one’s family. NE ST § 29-3901(3)
FPG: Defendants whose annual gross income is less than 125% of the Federal Poverty Guidelines are considered indigent. District Court Local Rule 3-13(B)(7)(a)(ii)
Bail: Funds used for posting bail are not considered “available funds” for the purposes of retaining
counsel. District Court Local Rule 3-13(B)(2)
Public Benefits: Social security, unemployment benefits and other forms of public assistance may be
considered as “income”. District Court Local Rule 3-13(B)(5) See also State v. Lafler, 224 Neb.
613(1987)
Public Benefits: Varies by County
Repayment: N/A

Gideon at 50: A Three-Part Examination of Indigent Defense in America

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
NEVADA
Definition: A defendant is indigent if “payments for counsel would place an undue hardship on his ability to provide the basic necessities of life for himself and his family. Rodriguez v. County of
Clark, 120 Nev. 798 (2004)
FPG: Varies by County3
Bail: N/A
Public Benefits: Varies by County
Repayment: If a defendant for whom an attorney is appointed at public expense on account of indigency has property subject to execution or acquires such property within 6 years after the termination of the attorney’s representation, the court shall determine the value of the legal services
provided and shall render judgment for that amount.4 NV ST 178.398
NEW HAMPSHIRE
Definition: A defendant is indigent if they are financially unable to obtain counsel. NH ST § 604-A:2 The
determination of a defendant’s financial ability to obtain counsel shall be made by comparing
the defendant’s assets and incomes with the minimum cost of obtaining qualified private counsel. NH ST § 604-A:2-c
FPG: N/A
Bail: N/A
Public Benefits: Income includes all income, whether earned or not, from any source. NH ST § 604A:2-c
Repayment: Any adult defendant who has had counsel assigned at the expense of the state shall be
ordered by the court to repay the state the fees and expenses paid by the state on the defendant’s behalf according to a schedule established by the administrator of the cost containment unit.5 NH ST § 604-A:9

3. Nevada’s Indigent Defense Commission issued a report which found that the methods utilized in Nevada’s courts and defender
offices to determine eligibility for assigned counsel vary widely. See “Final Report and Recommendations of Supreme Court Indigent
Defense Commission” page 20.
4. The court may also order a defendant to pay all or any part of the expenses incurred by the county, city or state in providing the
defendant with an attorney which are not recovered pursuant to NV ST 178.398. The order may be made at the time of or after the appointment of an attorney and may direct the defendant to pay the expenses in installments.
5. The state may also collect from the defendant a service charge of up to 10 percent of the total amount of fees and expenses
owed by such defendant.

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50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
NEW JERSEY

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Definition: An indigent defendant is a person who is formally charged with the commission of an indictable offense and who does not have the present financial ability to secure competent legal
representation and to provide all other necessary expenses of representation. NJ ST 2A:158A2
FPG: Annual gross income must be below 125% of the Federal Poverty Guidelines to assign counsel.
See New Jersey Courts: Income Eligibility Guidelines for Indigent Defense Services
Bail: The ability of the defendant to make bail and the source of that bail are considered. NJ ST 2A:158A14(d)
Public Benefits: Income attributed to a defendant includes unemployment, disability, social security
and veteran’s benefits as well as other form of public assistance including food stamps. New
Jersey Uniform Defendant Intake Form
Repayment: In all cases where it appears that the defendant has or reasonably expects to have means
to meet some part, though not all, of the cost of the services rendered to him he shall be required to reimburse the office in such amounts as he can reasonably be expected to pay. NJ
ST 2A:158A-16 The reasonable value of the services rendered to a defendant may in all cases
be a lien on any and all property to which the defendant shall have or acquire an interest. NJ
ST 2A:158A-17(a)
NEW MEXICO
Definition: A “needy person” means a person who, at the time his need is determined by the court,
is unable, without undue hardship, to provide for all or a part of the expenses of legal representation from available present income and assets. NM ST § 31-16-2(C)
FPG: The New Mexico Public Defender Department refers to the Federal Poverty Guidelines when determining eligibility for assigned counsel.
Bail: Release on bail does not necessarily prevent him from being a needy person. NM ST § 31-16-5(B)
Public Benefits: N/A
Repayment: To the extent that a person is able to provide for an attorney and the other necessary services of representation, the court may order him to provide for their payment. NM ST § 31-165(C) The district attorney may recover reimbursement, from each person who has received
legal assistance and who, on the date on which suit is brought, is financially able to reimburse
the state for it but refuses to do so. NM ST § 31-16-7(B)
NEW YORK
Definition: An indigent defendant is someone who is financially unable to afford counsel. NY CRIM
PRO §§ 170.10 and 180.10 Courts must make a significant inquiry into a defendant’s ability to
engage a lawyer. See People v. McKiernan, 84 NY2d 915 (1994)
FPG: Varies by County6
Bail: N/A
Public Benefits: Varies by County
Repayment: N/A

6. A report concluded that New York State had guidelines for the appointment of counsel in only a few of their 62 counties and
that, even in those counties, the guidelines were not uniformly applied. See “The Commission on the Future of Indigent Defense Services:
Final Report to the Chief Judge of New York State” (2006), pages 15-16.

Gideon at 50: A Three-Part Examination of Indigent Defense in America

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
NORTH CAROLINA
Definition: An indigent person is a person who is financially unable to secure legal representation and
to provide all other necessary expenses of representation NC ST § 7A-450
FPG: N/A
Bail: N/A
Public Benefits: N/A
Repayment: In all cases the court shall direct that a judgment be entered for the money value of services rendered by assigned counsel plus any sums allowed for other necessary expenses which
shall constitute a lien as prescribed by the general law of the State applicable to judgments.
The value of services shall be determined in accordance with rules adopted by the Office of
Indigent Defense Services.7 NC ST § 7A-455(b)
NORTH DAKOTA
Definition: North Dakota Commission on Legal Counsel for Indigent has the authority to define “indigency”. ND ST 54-61-01
FPG: Defendants making more than 125% of the Federal Poverty Guidelines generally do not qualify for
assigned counsel. North Dakota Commission on Legal Counsel for Indigents: Guidelines to
Determine Eligibility for Indigent Defense Services
Bail: Bail should not be a factor in determining indigency. North Dakota Commission on Legal Counsel
for Indigents: Guidelines to Determine Eligibility for Indigent Defense Services
Public Benefits: Automatically eligible if receiving TANF or SSI. Sources of income considered include
social security, veterans and unemployment benefits. North Dakota Commission on Legal
Counsel for Indigents: Guidelines to Determine Eligibility for Indigent Defense Services
Repayment: A defendant for whom counsel is provided at public expense shall reimburse the state
such sums as the state expends on the defendant’s behalf. Unless it finds that there is no likelihood that the defendant is or will be able to pay attorney’s fees and expenses, the court, in
its judgment of conviction, shall order the defendant to reimburse the presumed amount of indigent defense costs and expenses ND ST 29-07-01.1(2)(b)

7. No judgment shall be entered unless the defendant is convicted. NC ST § 7A-455(c)

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NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
OHIO

38

Definition: An indigent person is an individual who at the time his need is determined is unable to
provide for the payment of an attorney and all other necessary expenses of representation. OH
ST § 120.03(B)(1) An indigent defendant is someone who is unable to obtain counsel. OH ST
RCRP 44(A),(B) See also State v. Tymcio, 325 N.E.2d 55 (1975)
FPG: Presumed eligible if making less than 125% of the Federal Poverty Guidelines. “Marginally Indigent”
defendants are those making below 187.5% but more than 125% of the Federal Poverty
Guidelines.
Bail: Release on bail shall not prevent a person from being determined to be indigent. OH ST §
120.03(B)(1) Any bail/bond expenses for the particular offense at issue should be taken into
consideration when determining eligibility. OH ADC 120-1-03 (5)
Public Benefits: Presumed eligible if receiving certain types of public assistance. OH ADC 120-103(C)(2) However, other source of income considered are: unemployment compensation,
workers compensation, social security compensation, disability compensation, and all other
similar forms of compensation/governmental assistance comprising household income OH
ADC 120-1-03(A)(1)
Repayment: Marginally Indigent Defendants (who make between 125% and 187.5% of the Federal
Poverty Guidelines) are subject to recoupment, contribution, or partial payment programs. OH
ADC 120-1-03(B)
OKLAHOMA
Definition: An indigent defendant is someone who “is financially unable or without adequate funds or
resources to employ counsel”. McCraw v. State, 476 P.2d 370 (Okl. Cr. 1970)
FPG: N/A
Bail: Posting bail creates a rebuttable presumption that a defendant is not indigent. OK ST T 22 §
1355A(D)
Public Benefits: N/A
Repayment: The court may order any person represented by assigned counsel to pay the costs for representation in full or in installments after a judicial determination that the person is financially able
to pay such costs. Oklahoma Court of Criminal Appeals Rule 1.14(B)
OREGON
Definition: A person is financially eligible for appointed counsel if the person is determined to be financially unable to retain adequate counsel without substantial hardship in providing basic
economic necessities to the person or the person’s dependent family. OR ST § 151.485(1)
FPG: Defendants making less than 130% of the Federal Poverty Guidelines are presumptively eligible.
ACP / Verification Desk Manual, Oregon Judicial Department
Bail: Appointed counsel may not be denied to any defendant merely because they have or are capable of depositing security for release. OR ST § 135.050(3)
Public Benefits: Social security, unemployment and veterans benefits are considered when determining eligibility. ACP / Verification Desk Manual, Oregon Judicial Department
Repayment: If the court finds that the defendant has financial resources that enable them to pay in full
or in part the costs of the legal and other services to be provided at state expense, the court
shall enter a limited judgment requiring that the person pay the amount that it finds the person
is able to pay without creating substantial hardship in providing basic economic necessities to
the person or the person’s dependent family. OR ST § 151.487(1)

Gideon at 50: A Three-Part Examination of Indigent Defense in America

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
PENNSYLVANIA
Definition: A defendant is indigent if they are without financial resources or who are otherwise unable
to employ counsel. PA ST RCRP 122
FPG: Varies by County
Bail: N/A
Public Benefits: Varies by County
Repayment: N/A
RHODE ISLAND
Definition: An “indigent defendant” includes a person who after payment of necessary expenses for
food, shelter and medical care, does not have sufficient income or assets to enable him or her
to retain counsel RI ST § 12-15-8
FPG: N/A
Bail: N/A
Public Benefits: Defendants receiving needs based government assistance are automatically eligible.
Repayment: N/A
SOUTH CAROLINA
Definition: A person is indigent if they are financially unable to employ counsel. SC R A CT Rule 602
FPG: A defendant is presumed indigent if their net family income is less than or equal to the Federal
Poverty Guidelines. SC R A CT Rule 602
Bail: N/A
Public Benefits: N/A
Repayment: The appointment of counsel creates a claim against the assets and estate of the person
who is provided counsel in an amount equal to the costs of representation. SC ST § 17-3-40(A)
If it appears that the person has some assets but they are insufficient to employ private counsel, the court, in its discretion, may order the person to pay these assets or a portion thereof
to the Office of Indigent Defense. SC ST § 17-3-45(A)
SOUTH DAKOTA
Definition: An indigent defendant does not have sufficient money, credit, or property to employ
counsel and pay for the necessary expenses of his representation. SC ST § 23A-40-6
FPG: Indigency should be considered without resort to artificially pre-determined standards or guidelines such poverty guidelines used to determine eligibility for public assistance. See Sate v.
Dale, 439 N.W.2d 112 (S.D. 1989)
Bail: N/A
Public Benefits: Social security and unemployment income should be considered when determining eligibility. See Sate v. Dale, 439 N.W.2d 112 (S.D. 1989)
Repayment: If the court finds that funds are available for payment from a defendant the court may
order that the funds be paid as a reimbursement either during the time a charge is pending
or after the disposition of the charge, regardless of whether the defendant has been acquitted or the case has been dismissed by the prosecution or by order of the court.8 SC ST §
23A-40-10
8. A lien upon all the property, both real and personal, of any person, for whom legal counsel or a public defender has been appointed, may also be filed. SC ST § 23A-40-11

Part 2 — Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel

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NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
TENNESSEE
Definition: An “indigent person” is one who does not possess sufficient means to pay reasonable
compensation for the services of a competent attorney. TN ST § 8-14-201
FPG: The Federal Poverty Guidelines are a factor in determining indigency. TN ST § 8-14-202(c)(4)
Bail: The ability to make bail is a consideration when determining indigency. TN ST § 8-14-202(c)(6)
See also State v. Gardner, 626 S.W.2d 721 (Tenn. Crim. App. 1981)
Public Benefits: All income, regardless of source is considered. TN ST § 8-14-202(c)(3)
Repayment: If the court appoints counsel to represent an accused but finds the accused is financially
able to defray a portion or all of the cost of the representation, the court shall enter an order
directing the party to pay any sum that the court determines the accused is able to pay. The
sum shall be subject to execution as any other judgment and may also be made a condition
of a discharge from probation. TN ST § 8-14-202(e)

40
TEXAS

Definition: Indigent means a person who is not financially able to employ counsel. TX CRIM PRO Art.
1.051(b)
FPG: Varies by County9
Bail: The court or the courts’ designee may not consider whether the defendant has posted or is capable of posting bail, except to the extent that it reflects the defendant’s financial circumstances TX CRIM PRO Art. 26.05(m)
Public Benefits: Varies by County
Repayment: If the court determines that a defendant has financial resources that enable him to offset
in part or in whole the costs of the legal services provided, the court shall order the defendant to pay during the pendency of the charges or, if convicted, as court costs the amount
that it finds the defendant is able to pay. TX CRIM PRO Art. 26.05(g)
UTAH
Definition: “Indigency” means that a person: does not have sufficient income, assets, credit, or other
means to provide for the payment of legal counsel and all other necessary expenses of representation without depriving that person or the family of that person of food, shelter, clothing, and other necessities; or has an income level at or below 150% of the United States
Poverty Guidelines. UT ST § 77-32-202(3)(a)
FPG: Defendants are eligible for assigned counsel if they earn 1505 or less of the Federal Poverty
Guidelines.
Bail: N/A
Public Benefits: Financial assistance from state and federal programs may be considered when determining eligibility. See State v. Vincent, 883 P.2d 278 (Utah 1994)
Repayment: N/A

9. A survey of the 254 counties in Texas found that 38 counties found defendants eligible for assigned counsel if they made
less than 100% of the Federal Poverty Guidelines, 54 counties found defendants eligible for assigned counsel if they made less than
125% of the Federal Poverty Guidelines and 6 counties found defendants eligible for assigned counsel if they made less than 150%
of the Federal Poverty Guidelines. See “The Costs and Benefits of an Indigent Defendant Verification Study” by the Texas Task Force
on Indigent Defense (2007), page 3.

Gideon at 50: A Three-Part Examination of Indigent Defense in America

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
VERMONT
Definition: A “needy person” is someone who does not have sufficient assets or income to retain
counsel. See State v. Morgan, 789 A.2d 928 (2001)
FPG: Defendants must pay a portion of the cost of representation based on a formula derived from
the Federal Poverty Guidelines. VT ST T. 13 § 5238(b)
Bail: Release on bail does not necessarily disqualify a person from being a needy person. VT ST T. 13
§ 5236(b)
Public Benefits: N/A
Repayment: The court shall require any person assigned counsel to pay for all or part of the cost of
representation based upon his or her ability to pay. In all cases the court shall order a minimum payment of $50.00. The amount of repayment is based on a defendant’s income relative to the Federal Poverty Guidelines; defendants who make more than 200% of the Federal
Poverty Guidelines must repay 100% of the costs of representation. VT ST T. 13 § 5238(b)
VIRGINIA
Definition: An indigent defendant is one whose income is equal to or less than 125% of the Federal
Poverty Guidelines. VA ST § 19.2-159(B)(3)
FPG: Counsel shall be appointed for the accused if his available funds are equal to or below 125% of
the Federal Poverty Guidelines. VA ST § 19.2-159(B)(3) If the available funds of the accused
exceed 125% of the Federal Poverty Guidelines the court may, in exceptional circumstances,
appoint an attorney to represent the accused. VA ST § 19.2-159(B)(3)
Bail: N/A
Public Benefits: Defendants who are receiving state or federally funded public assistance are presumptively eligible. VA ST § 19.2-159(B) Social Security and veterans benefits are considered
as income. VA ST § 19.2-159(B)(1)
Repayment: If the defendant is convicted, the amount allowed by the court to the attorney appointed
to defend him shall be taxed against the defendant as a part of the costs of prosecution and,
if collected, the same shall be paid to the Commonwealth, or the county, city or town, as the
case may be. VA ST § 19.2-163(2)
WASHINGTON
Definition: Indigent means a person who, at any stage of a court proceeding, is receiving certain types
of public assistance, or has an annual income, after taxes, of one hundred twenty-five percent
or less of Federal Poverty Guidelines. WA ST 10.101.010(3)
FPG: A defendant making 125% or less of the Federal Poverty Guidelines is eligible for assigned counsel. WA ST 10.101.010(3)(c)
Bail: The appointment of counsel shall not be denied because the person has posted or is capable of
posting bail. WA ST 10.101.020(2)
Public Benefits: Income includes cash payments such as reimbursements received from social security and public assistance programs. WA ST 10.101.010(2)(b)
Repayment: Indigent and able to contribute means a person who is unable to pay the anticipated cost
of counsel because his or her available funds are less than the anticipated cost of counsel but
sufficient for the person to pay a portion of that cost. WA ST 10.101.010(4) All persons determined to be indigent and able to contribute, shall be required to execute a promissory note
at the time counsel is appointed. WA ST 10.101.020(5)

Part 2 — Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel

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NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
WEST VIRGINIA

42

Definition: Defendants are presumptively eligible if they are receiving assistance from certain federal programs that are based on the Federal Poverty Guidelines or have an income below 125% of the
Federal Poverty Guidelines.10 West Virginia Public Defender Services: Financial Guidelines for
Determining Eligibility
FPG: Defendants may be eligible if their income is below 125% of the Federal Poverty Guidelines. West
Virginia Public Defender Services: Financial Guidelines for Determining Eligibility
Bail: Whether a defendant has posted a cash bond or has obtained release on bond through the services of a professional bondsman is a factor in determining eligibility. WV ST § 29-21-16(e)(8)
Public Benefits: N/A
Repayment: N/A
WISCONSIN
Definition: Defendants is eligible for appointed counsel if the anticipated costs of retained counsel exceeds the assets and income deemed available to pay the costs of legal representation.11
Wisconsin Administrative Code: State Public Defender Board 3.03(a)(b)
FPG: Income is available to apply to the costs of legal representation if it exceeds 115% of the Federal
Poverty Guidelines. Wisconsin Administrative Code: State Public Defender Board 3.03(3)
Bail: N/A
Public Benefits: Defendants are eligible for assigned counsel if their only income is from certain needs
based assistance programs. Administrative Code: State Public Defender Board 3.03(5)
Repayment: A person has the ability to pay some amount towards the costs of legal representation if
they a gross income in excess of the federal Poverty Guidelines. Administrative Code: State
Public Defender Board 6.025(1) Amount of contribution is determined by a schedule set by
the State Public Defender Board.12

10. The agency [West Virginia Public defender Services] shall establish, and periodically review and update financial guidelines for
determining eligibility for legal representation made available under the provisions of this article. The agency shall adopt a financial affidavit form for use by persons seeking legal representation made available under the provisions of this article. WV ST § 29-21-16(a)
11. The State Public Defender Board is responsible for promulgating rules regarding financial eligibility for assigned counsel. WI ST
977.02
12. See Wisconsin Administrative Code: State Public Defender Board 6.01 and 6.02.

Gideon at 50: A Three-Part Examination of Indigent Defense in America

NATIONAL ASSOCIATION OF CRIMINAL DEFENSE LAWYERS
50-State Survey Of Financial Eligibility Guidelines For Assigned Counsel
WYOMING
Definition: Any person financially unable to obtain adequate representation who is charged with a
crime is entitled to appointed counsel. Wyoming Rules of Criminal Procedure 44(a)(1) A person is entitled to the appointment of counsel if, at the time counsel is needed, the person
is unable to provide for the full payment of an attorney and all other necessary expenses of
representation. Wyoming Rules of Criminal Procedure 44 (d)
FPG: N/A
Bail: Release on bail does not necessarily prevent a person from being determined to be needy. WY
ST § 7-6-106(b)
Public Benefits: All sources of income are considered. Wyoming Rules of Criminal Procedure 44
(d)(2)
Repayment: If the court determines the person is able to provide any amount as reimbursement, the
court shall order the person to reimburse the state for all or part of the costs of the services
provided. WY ST § 7-6-106(c) If the court orders release on bail pending trial or appeal, probation before sentence, suspended sentence or probation, the court shall order the needy
person as a condition of bail, sentence or probation to repay the state for expenses and
services provided by appointed attorneys if the court determines the defendant has an ability to pay or that a reasonable probability exists that the defendant will have an ability to
pay. WY ST § 7-6-106(e)

Part 2 — Redefining Indigence: Financial Eligibility Guidelines for Assigned Counsel

43

44

Gideon at 50: A Three-Part Examination of Indigent Defense in America

This publication is available online at

www.nacdl.org/gideonat50/

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CRIMINAL DEFENSE LAWYERS

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